author: JUSTICE SPITZ

text:
    JOHN YATES et al., Plaintiffs-Appellants, v. ROBERT D. BROCK, Defendant-Appellee.
    Fourth District
    No. 4—89—0160
    Opinion filed November 9, 1989.
    Rehearing denied January 8, 1990.
    James Walker, Ltd., of Bloomington, for appellants.

      David E. Jones, of Thomas & Hinshaw, Culbertson, of Peoria, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by the plaintiffs John Yates and D. Merold Yates from a judgment entered in the circuit court of McLean County in favor of plaintiffs against defendant Robert D. Brock. Plaintiffs brought an action to recover damages for personal injuries to John Yates, a minor, and to recover lost earnings of and medical expenses incurred by his father, D. Merold Yates, all allegedly resulting from a collision between vehicles driven by the younger Yates and defendant. The jury awarded John Yates $9,666.67 and his father $9,628.67, after reducing the total amount of damages by 33V3% for negligence attributable solely to plaintiff which was a proximate cause of plaintiff’s injury or damage.

The evidence at trial establishes the collision occurred on Main Street in Bloomington, Illinois, near its intersection with Baker Street, on December 6, 1985, at approximately midnight. At the time of the incident, defendant was driving a Nissan pickup truck. Defendant is from Memphis, Tennessee, and was in Bloomington temporarily working on the construction of a motel. Defendant left Memphis about 3 a.m. the day before, stopped in another town to pick up a foreman, then drove through a snowstorm in Illinois to arrive in Bloomington around 2 or 3 a.m. the day of the collision. He arose to get ready for work at 7 a.m., began work at 7:15 a.m. and worked until 10 p.m. It was after work that he and his foreman Robert Frost went to look for a hamburger place. After leaving the restaurant, he drove out of the parking lot of a restaurant then known as the Sundown Lounge and turned right onto Main Street. In doing so, he drove the truck briefly in the right lane of Main Street and then in the center lane. When he first turned onto Main Street, defendant knew it was a one-way street, but was not sure in which direction. Although he was looking for something to indicate whether he was traveling in the correct direction, he did not notice the street signs were facing away from him, nor did he notice the traffic signal at one intersection did not face traffic from the direction he was approaching the intersection. Main Street has three lanes. There was no other traffic on Main at that time. Prior to pulling into the restaurant parking lot, however, defendant had seen vehicles traveling northbound on Main Street. When he drove his truck onto Main Street, the truck’s headlights were on dim. After about a block, he moved the truck into the center lane. He drove about six blocks in the center lane. Prior to the collision, he pulled the truck back into the right-hand lane and stopped. He had been driving this truck at 30 to 35 miles per hour. He realized he was driving the wrong way on a one-way street when a car approached in the opposite direction. It took about one-half block to pull the truck over to the right and stop. Plaintiff’s vehicle then came over a hill in the northbound direction in the same lane as defendant had stopped his truck and the collision occurred. Only three or four seconds elapsed between the time the truck came to a stop and the collision occurred. Defendant flashed his lights once prior to the collision. According to defendant, he could see Yates in the car with his girlfriend and that they were looking at each other. Defendant testified that when he approached the Yates vehicle, Yates said he had been drinking. Defendant also had been drinking. He could smell whiskey in the car and on Yates’ breath. Yates’ girlfriend removed what appeared to be a half-gallon bottle of whiskey, cups, ice, and Coke. Defendant did not mention this to the police because he did not want to get the occupants of the other vehicle in trouble. He believes Yates was intoxicated. It was stipulated defendant was intoxicated. He pleaded guilty to the charge of driving while under the influence.

Annetta Hinthorne, the passenger in Yates’ Volkswagon at the time it collided with the defendant’s Nissan pickup truck, stated Yates had not been drinking alcoholic beverages from the time he met her at a dance at about 10:30 p.m. to the time of the collision. She believed defendant and his passenger were intoxicated. The officer who investigated the collision, Mike Jordan, also believed defendant’s passenger was intoxicated. A passer by who stopped, David Geertz, also testified he believed defendant and his passenger were intoxicated. Geertz saw defendant drive out of the parking lot onto Main Street. Geertz’s vehicle was traveling north on Main Street, and Geertz flashed his lights at defendant to make defendant realize he was going the wrong way. Looking in the rearview mirror to observe if defendant realized this, Geertz observed the collision. The passenger in Geertz’s vehicle, Jim Upton, could not formulate an opinion as to defendant’s intoxication. Another police officer at the scene, Dan Katz, observed the defendant and issued the DUI citation. A blood sample was taken from defendant at the hospital. Defendant’s blood-alcohol concentration was 0.188 grams per decaliter.

John Yates testified concerning the circumstances of the collision. He testified he did not have anything alcoholic to drink that evening and there was not a half-gallon of whiskey in his car. He was glancing at the used car lots as he passed them. When he first saw the small pickup truck in front of him, there was not sufficient time to react to avoid the collision. He does not remember braking or seeing the truck’s headlights. The view is unobstructed and the road is straight, with a slight decline. There was nothing obstructing his view for the last few blocks prior to the collision.

Defendant’s passenger, Robert Frost, testified he is a foreman for the electrical company owned by defendant’s father. He recalls defendant having three or four beers. After the car flashed its lights at defendant, it took five or six seconds for defendant’s vehicle to come to a stop. Frost is not sure if the pickup truck came to a complete stop, but defendant was attempting to stop the vehicle. He did not talk to Yates, and he saw the girl in the car run off screaming, but he did not see her carrying anything. He admitted he was intoxicated, and this may be part of the reason he was unable to remember some of the circumstances.

In closing arguments, defendant’s counsel noted there was no evidence Yates was intoxicated, he had not pleaded Yates was intoxicated, and he did not argue Yates was intoxicated. Instead, he suggested Yates and his passenger had gone to get Cokes to mix drinks and they were in the process of doing so when the accident occurred, explaining why Yates did not see the other vehicle in time to avoid the collision.

The first issue to consider is whether a defendant’s responsibility for damages caused by defendant’s wilful and wanton misconduct may be reduced by having the jury compare plaintiff’s negligence with the defendant’s wilful and wanton misconduct and whether the instructions given for such comparison were proper. In State Farm Mutual Automobile Insurance Co. v. Mendenhall (1987), 164 Ill. App. 3d 58, 517 N.E.2d 341, this court recently considered the question of whether plaintiff’s negligence should be compared to a defendant’s wilful and wanton misconduct and decided that such a comparison is appropriate. Plaintiffs attempt to persuade this court to abandon the holding in Mendenhall. However, plaintiffs cite no new cases for this court’s consideration. Nor do plaintiffs distinguish Mendenhall from the case at bar or attempt to convince the court that public policy has shifted since this court’s earlier decision such that the court should retreat from the holding in Mendenhall. Instead, relying on cases in existence at the time Mendenhall was decided, plaintiffs urge this court to decide the earlier decision was wrong. However, we refuse to abandon this court’s decision in Mendenhall.

The second part of this issue, concerning the proper instruction to be given, was not addressed in Mendenhall. In the instruction conference, plaintiffs argued the instructions should not be given because negligence of plaintiff cannot properly be compared to defendant’s wilful and wanton misconduct. The trial court refused plaintiffs’ instruction No. 11 and gave defendant’s No. 13 because plaintiffs’ instruction did not include the issue of plaintiff’s “contributory negligence.”

Plaintiffs’ brief focuses only on Illinois Pattern Jury Instructions, Civil, No. A45.05 (2d ed. Supp. 1986) (IPI Civil 2d), and suggests that the language therein requires plaintiff’s negligence be compared to all other “negligence,” and since defendant’s conduct was wilful and wanton, the jury would end up comparing plaintiff’s negligence only to plaintiff’s negligence. Plaintiff apparently suggests the term “fault” be substituted for “negligence.” We reject plaintiffs’ suggestion. “Negligence” and “wilful and wanton” are defined in the Illinois Pattern Jury Instructions and were defined for the jury. Here the jury considered “the total combined negligence of the plaintiff and the wilful and wanton conduct of the defendant” before assigning a percentage to plaintiff’s negligence. It does not appear the jury was confused. In the jury verdict form, the jury found the percentage of plaintiff’s negligence which proximately caused plaintiff’s injury and damage to be 33⅓%. Had the jury resorted to the semantics used by the plaintiffs on appeal, i.e., comparing plaintiff’s negligence with only plaintiff’s negligence, then the percentage should have been 100%. It seems clear the jurors understood they were comparing the relative fault of the parties.

The remaining issue to consider is whether plaintiffs were not entitled to recover punitive damages because no prayer for such relief was included in the complaint. The issue here is not, as defendant suggests, whether the trial court properly determined, as a matter of law, that this case was not a proper case for punitive damages. While it is the function of the trial court to determine, as a matter of law, whether a case is a proper case for punitive damages (Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 532 N.E.2d 1091), that issue was never raised in the trial court and was not the reason for the trial court’s decision. Punitive damages may be awarded where the defendant’s acts are done wilfully or with such gross negligence as to indicate a wanton disregard of the rights of others. Loitz, 177 Ill. App. 3d at 1057, 532 N.E.2d at 1105.

In this case, the first time the question of punitive damages arose was during voir dire. Defense counsel objected on the basis of surprise and because of the potential for the conflict of interest it might cause because defense counsel was retained by defendant’s insurance company. The plaintiffs’ attorney advised the court there was no motion for leave to amend pending and apparently relied, as plaintiffs do on appeal, on the theory that punitive damages need not be specified in the prayer for relief as long as the facts alleged and the proofs made warrant the assessment of punitive damages. The trial court decided any motion to amend would be denied as untimely, and since no issue of punitive damages existed, plaintiffs’ attorney would not be allowed to discuss punitive damages with prospective jurors.

Plaintiffs tendered an instruction, based on IPI Civil 2d No. 35.01, which would have informed the jury it was permissible to award damages to punish defendant and to deter others from committing like offenses. The judge refused the tendered instruction on defendant’s objection that this question had already been decided. There was no further discussion of the issue at that time.

Plaintiffs argue simply that they did not need to allege punitive damages in order to recover punitive damages. This is apparently no longer the law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—604.1.) However, the statute modifying the law applies only to causes of action accruing after November 25, 1986. Ill. Ann. Stat., ch. 110, par. 2—604.1, Historical and Practice Notes, at 13 (Smith-Hurd Supp. 1989).

In Kubajak v. VerBrugge (1965), 59 Ill. App. 2d 344, 207 N.E.2d 344, the court stated a preference that the defendant not be surprised by a claim for punitive damages. Subsequently, the decision of People ex rel. Scott v. Police Hall of Fame, Inc. (1978), 60 Ill. App. 3d 331, 376 N.E.2d 665, relied on Kubajak to reverse an award of $150,000 punitive damages when a specific request for punitive damages was not included in the complaint even though the complaint charged the defendants with egregious conduct.

As this court noted in Loitz v. Remington Arms Co. (1988), 177 Ill. App. 3d 1034, 532 N.E.2d 1091, the issue of punitive damages involves presentation of evidence which is distinct from and often unrelated to the issues of liability and actual damages and which might prejudice a defendant with regard to the jury’s consideration of the questions of liability and special damages, including, for example, defendant’s ability to pay punitive damages. Where the question of punitive damages is first raised the morning of trial, it seems likely defendant was unprepared to address the issues raised thereby. Since plaintiffs had not prayed for punitive damages in their complaint, the trial court properly ruled the question of punitive damages could not be raised at trial. Accordingly, the judgment of the circuit court of McLean County is affirmed.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ACEVEDO, Defendant-Appellant.
    Third District
    No. 3—89—0110
    Opinion filed December 8, 1989.
    David Acevedo, of Galesburg, appellant pro se.

    Tony L. Brasel, Special Prosecutor, of Watseka (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

A jury convicted the defendant, David Acevedo, of unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)). The trial court sentenced him to 11 years in prison and fined him $100,000. He appeals, initially arguing that his counsel labored under a per se conflict of interest.

In relevant part, the record reveals that on May 3, 1988, the defendant was charged by an information signed by Assistant State’s Attorney Mark B. Thompson and presented by State’s Attorney Tony Brasel. On May 6, 1988, the court found that the defendant was indigent and appointed attorney Ronald Boyer to represent him. Throughout the remainder of the case, Boyer continued representing the defendant. Brasel, who was appointed special prosecutor prior to trial, continued appearing on the State’s behalf. Thompson never appeared on the State’s behalf in connection with the instant case, and the record does not indicate that he had any contact with the case other than signing the information. Sometime prior to trial, Thompson became associated with Boyer in the practice of law. However, the record does not show that Thompson ever appeared on behalf of the defendant or had any input into the defense of the defendant.

The pro se defendant contends that he was denied his right to the effective assistance of counsel. Specifically, he argues that his counsel labored under a per se conflict of interest because his law partner had participated in the prosecution of the case.

We note that the Illinois Supreme Court in People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30, was recently confronted with a similar issue. In Spreitzer, the public defender’s office was appointed to represent the defendant and the case was eventually assigned to assistant public defender Carol Anfinson. About the time Anfinson was assigned the case, Peter Dockery, a former assistant State’s Attorney who was “very much involved” in the decision to charge the defendant with murder, was hired as an assistant public defender. Sometime prior to trial, Dockery was promoted to Du Page County public defender and his name began appearing as the defendant’s attorney on pleadings filed by the defense. The defendant argued that a per se conflict of interest was created, based on Dockery’s personal prosecutorial involvement and his subsequent association with Anfinson.

The Spreitzer court, in holding that the per se conflict of interest analysis should not be applied to the facts before it, found that the asserted conflict involved a choice between the interests of a client and the interests of a colleague. The court noted, however, that unlike the per se cases, the conflict did not involve a direct conflict between the interests of two opposing clients or between a present client and a past personal commitment. Moreover, the court further noted that Anfinson would not have to attack anything she had personally done, and therefore, the rationale enunciated in People v. Kester (1977), 66 Ill. 2d 162, 361 N.E.2d 569, was inapplicable.

In the instant case, we find that Spreitzer is controlling and that, therefore, no per se conflict of interest existed. Accordingly, it was incumbent upon the defendant to show that there was an actual conflict demonstrated by the performance of his counsel at trial. (People v. Spreitzer (1988), 123 Ill. 2d 1, 525 N.E.2d 30.) We note that the defendant’s brief contains a number of allegations that are either speculative, conclusory, or unsupported by the record, to the effect that his counsel’s performance at trial was hampered. We find that his contentions are meritless and do not stem from any conflict.

The defendant next argues that his trial counsel was ineffective. Specifically, he argues that (1) counsel failed to have a complete discussion with him about the merits of his case; (2) counsel failed to locate a favorable defense witness; (3) counsel failed to provide the defendant "with copies of the reports and transcripts relative to the case; (4) counsel made prejudicial statements to the jury which were not discussed with or authorized by the defendant; and (5) counsel did not allow the defendant to make an informed choice regarding his decision of whether to testify.

We note that a defendant waives an issue on appeal if he fails to give factual support for his position by citation to the record (People v. Trimble (1989), 181 Ill. App. 3d 355, 537 N.E.2d 363), or fails to cite authority in support of his argument (People v. Ramirez (1983), 98 Ill. 2d 439, 457 N.E.2d 31). In the instant case, the defendant failed to support his arguments with appropriate authority and record references. Accordingly, we find that he has waived this issue. Nonetheless, we further note that having considered the defendant’s pro se contentions in light of the relevant authority and the facts presented in the record, we find them meritless.

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

Affirmed.

WOMBACHER, P.J., and BARRY, J., concur.


author: JUSTICE STOUDER

text:
    GILBERT RIVERA, Petitioner-Appellant, v. MICHAEL O’LEARY, Warden, Stateville Correctional Center, et al., Respondents-Appellees.
    Third District
    No. 3—89—0119
    Opinion filed December 6, 1989.
    Gilbert Rivera, of Joliet, appellant pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Michael J. Singer, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The pro se petitioner, Gilbert Rivera, filed a petition for a writ of habeas corpus after the Illinois Prisoner Review Board (the Board) denied him parole. The respondents, Michael O’Leary, warden of State-ville Correctional Center, and Paul J. Klincar, Chairman of the Prisoner Review Board, filed a motion to dismiss the petition. The trial court granted the motion to dismiss. The petitioner appeals.

The record shows that in 1974, the petitioner began serving an indeterminate term of 20 to 60 years' imprisonment for murder. Since 1981, he has appeared before the Board requesting parole on at least seven occasions and each time his request has been denied. In denying his latest parole request, the Board cited as its rationale that granting him parole would deprecate the seriousness of his offense.

On appeal, the petitioner first argues that the Board denied his request for parole based on arbitrary and capricious reasons. We note that it is well settled that the Illinois Habeas Corpus Act (Ill. Rev. Stat. 1987, ch. 110, par. 10—101 et seq.) does not provide relief to a prisoner whose request for parole has been unreasonably, arbitrarily, or capriciously denied. (Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 514 N.E.2d 208; People ex rel. Burbank v. Irving (1982), 108 Ill. App. 3d 697, 439 N.E.2d 554.) Accordingly, the circuit court properly dismissed the petitioner's petition for a writ of habeas corpus, since it failed to state a claim upon which relief could have been granted.

The petitioner’s second argument is that the Board had no authority over him because the statute creating the Board and establishing the standards for parole is invalid since it establishes a deterrent criterion, while the Illinois Constitution mandates a rehabilitative criterion. (Ill. Rev. Stat. 1987, ch. 38, par. 1003—3—5(c)(2); Ill. Const. 1970, art. I, §11.) We rejected this argument in Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 514 N.E.2d 208. The Board may properly consider principles of retributive justice and general deterrence in rendering its decisions. Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 514 N.E.2d 208.

The petitioner next argues that amended section 3 —6—3(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1003—6—3(a)) is an ex post facto law which unconstitutionally repealed the authority of the Illinois Department of Corrections to award him good conduct credit. We find that the petitioner has made no showing in the trial court or in his appeal brief, nor does the record reveal, that he has been unconstitutionally disadvantaged by the amendment as interpreted in Lane v. Sklodowski (1983), 97 Ill. 2d 311, 454 N.E.2d 322. Accordingly, we find the petitioner’s contention meritless. See Outlaw v. O’Leary (1987), 161 Ill. App. 3d 218, 514 N.E.2d 208.

As a final matter, we note that the respondents have urged us to define a prisoner’s due process rights, if any, under the Illinois parole process. Since in the instant case we find no due process violation under the standards enunciated in Heirens v. Mizell (7th Cir. 1984), 729 F.2d 449, we find no reason to speculate about facts not before us.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE BARRY

text:
    WAYNE MATTER, as Adm’r of the Estate of Violet Louise Smith, Plaintiff-Appellant, v. CHESTER SEDAM et al., Defendants-Appellees.
    Third District
    No. 3—89—0088
    Opinion filed December 8, 1989.
    Gregory J. McHugh, of Appleton & McHugh, of Aledo, for appellant.
    Thomas L. Kilbride, of Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

The plaintiff, Wayne Matter, acting as administrator of the estate of Violet Louise Smith, filed a dramshop action (Ill. Rev. Stat. 1987, ch. 43, par. 135) against the defendants, Chester Sedam, Resa Sedam, Josephine Hentges, and Mathias Hentges. The trial court dismissed the complaint, finding that it failed to state a cause of action. The plaintiff appeals the dismissal.

The plaintiff’s complaint alleged that on January 14, 1988, the defendants had sold intoxicating liquor to the decedent, Violet Louise Smith. The complaint further alleged that as a result of her intoxication, the decedent was involved in a fatal car accident. The complaint sought compensation for the decedent’s funeral expenses and the loss of her automobile.

The defendants filed a motion to dismiss for failure to state a cause of action. The motion alleged that the Dramshop Act (Ill. Rev. Stat. 1987, ch. 43, par. 135) did not confer a cause of action for injury to the intoxicated person’s property. The motion further alleged that since the decedent would have been barred from recovering, her estate was barred as well. The trial court granted the motion and dismissed the complaint.

The plaintiff argues on appeal that the trial court erred in dismissing his complaint. He contends that the Dramshop Act confers to an estate the right to recover for injury to the decedent’s property, even if the decedent was the intoxicated person.

We disagree. In 1985 the Dramshop Act was amended to eliminate the intoxicated person’s right to recover for injury to his property. (Seibring v. Parcell’s, Inc. (1987), 151 Ill. App. 3d 1003, 503 N.E.2d 1126.) The plaintiff, as the administrator of the decedent’s estate, stands in the shoes of the decedent and acquires the same interest in the property as the decedent had. (Ilg v. Continental Illinois National Bank & Trust Co. (1968), 94 Ill. App. 2d 143, 236 N.E.2d 316.) Since the decedent would have been barred from recovering for the loss of her property, the plaintiff is barred as well. We therefore find that the trial court did not err in dismissing the complaint.

The judgment of the circuit court of Mercer County is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES A. BEARD, Defendant-Appellee.
    Third District
    No. 3—89—0180
    Opinion filed December 8, 1989.
    Stephen Reed, State’s Attorney, of Oquawka (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    James R. Standard, of Standard & Tenold, of Monmouth, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Charles Beard, was charged with reckless homicide, driving under the influence of alcohol, and failure to drive on the right side of the road. Following a jury trial, the defendant was convicted of all three offenses. He was sentenced to a fine of $1,000 and a one-year term of probation, conditioned on serving six months of work release, for the charge of driving under the influence of alcohol. He was fined $100 and costs on the charge of failure to drive on the right side of the road. However, the defendant’s motion in arrest of judgment was granted as to the reckless homicide conviction, since the indictment failed to allege that the defendant acted recklessly. The State appeals the trial court order granting the arrest of judgment.

On appeal, the State argues that subsequent to the Illinois Supreme Court’s decision in People v. Smith (1984), 99 Ill. 2d 467, the reckless homicide statute was amended so that driving under the influence of alcohol is prima facie evidence of a reckless act. (Ill. Rev. Stat. 1987, ch. 38, par. 9—3(b).) Thus, merely because the word “reckless” did not appear in the body of the indictment, the indictment was not insufficient as a matter of law. We disagree and affirm the trial court decision.

The indictment in the instant case alleges that the defendant committed reckless homicide:

“[I]n that said defendant performed acts likely to cause the death of or great bodily harm to some individual, without legal justification, in that he operated a motor vehicle heading in an Easterly direction along and upon Henderson County Road 700N .2 of a mile West of the intersection of Henderson County Road 700N with Illinois State Route 94, Henderson County, Illinois, while under the influence of alcohol to such a degree that he was incapable of safely driving, causing him to lose control of his vehicle and cross the centerline and the opposing lane of traffic and strike a vehicle on the Westbound shoulder of Henderson County Road 700N operated by Debra A. Shields, thereby causing the death of Debra A. Shields in violation of Chapter 38, Section 9—3, Paragraph (a), Illinois Revised Statutes.” (Emphasis added.)

The trial court, relying on People v. Smith (1984), 99 Ill. 2d 467, found that the body of the indictment must specifically use the term “reckless” to allege the defendant’s mental state in a reckless homicide charge. This court finds that a detailed analysis of Smith supports the trial court’s ruling.

In Smith, the defendant was charged with reckless homicide by unintentionally killing an individual without lawful justification, by committing the act of driving a motor vehicle at an excessive rate of speed. The jury found the defendant guilty of the reckless homicide charge. The defendant thereupon filed a motion in arrest of judgment, asserting for the first time that the indictment failed to charge reckless homicide because it did not allege that he acted recklessly. The trial judge denied the motion and sentenced him for the offense of reckless homicide. The appellate court then reversed the conviction of reckless homicide (People v. Smith (1983), 112 Ill. App. 3d 1033), and the Illinois Supreme Court affirmed the appellate court.

The Illinois Supreme Court in Smith found:

“A reckless state of mind is an integral part of the crime of reckless homicide; recklessness therefore must be alleged in the body of the information.” (Smith, 99 Ill. 2d at 472.)

The Smith court based its ruling on the mandatory language of the Illinois Code of Criminal Procedure of 1963, which states that an indictment must set forth the nature and elements of the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 111—3(a)(3).) This statutory requirement is based on the public policy that a defendant has a fundamental right to be informed of the “nature and cause” of criminal accusations made against him. U.S. Const., amend. VI; Ill. Const. 1970, art. I, §9.

The Smith court further noted that where a motion in arrest of judgment has been granted based on a defect in the indictment, no showing must be made that the defect prejudiced the defendant. (Smith, 99 Ill. 2d at 474.) The Smith court distinguished this situation from that presented in People v. Pujoue (1975), 61 Ill. 2d 335, where a challenge to an indictment is made for the first time in the appellate court and where the defendant is required to show actual prejudice. The Smith court differentiated Pujoue on the basis of the mandatory language of section 116—2, which provides:

“Motion in Arrest of Judgment.
(a) A written motion in arrest of judgment shall be filed by the defendant within 30 days following the entry of a verdict or finding of guilty. Reasonable notice of the motion shall be served upon the State.
(b) The court shall grant the motion when:
(1) The indictment, information or complaint does not charge an offense ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 116—2.)

The Smith court, following the reasoning of People v. Lutz (1978), 73 Ill. 2d 204, found that the legislative intent of section 116—2 was to require courts to grant a motion in arrest of judgment where a conviction is based on a defective charge, regardless of whether any prejudice is shown. The Smith court concluded that if the legislature wanted the courts to extend the Pujoue rule of showing actual prejudice to the defendant in ruling on section 116—2 motions, the legislature should change the statute, not the courts.

The State submits, however, that even under the Smith holding the indictment in the case at bar was not defective because of the recent amendment to the reckless homicide statute which made driving under the influence of alcohol prima facie evidence of a reckless act. (Ill. Rev. Stat. 1987, ch. 38, par. 9—3(b).) The State argues that since the reckless homicide charge in this case alleged that the defendant was driving under the influence of alcohol, it was not necessary to specifically use the term “reckless” in the body of the indictment. We disagree.

The State’s indictment omitted the term “reckless” from the body of the indictment. The Smith holding clearly states that in a charge of reckless homicide, recklessness must be alleged in the body of the indictment. The recent amendment to the reckless homicide statute did not change the definition of the elements necessary to charge the offense of reckless homicide. Rather, the recent amendment to the reckless homicide statute merely dealt with evidentiary considerations and the presentations of proofs. Therefore, the State, pursuant to section 116—2 and Smith, failed to fairly advise the defendant of the reckless homicide charge by not setting forth the requisite element of recklessness in the body of the indictment.

Accordingly, we affirm the circuit court of Henderson County.

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE REINHARD JUSTICE INGLIS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES F. BESSLER, Defendant-Appellant.
    Second District
    Nos. 2—88—0118 through 2—88—0120 cons.
    Opinion filed December 4, 1989.
    Rehearing denied January 8, 1990.

      INGLIS, J., dissenting.
    G. Joseph Weller and Kim M. DeWitt, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Following a stipulated bench trial in the circuit court of Du Page County, defendant, Charles F. Bessler, was found guilty of the offenses of unlawful use of weapons (Ill. Rev. Stat. 1987, ch. 38, par. 24—1(a)(7)), possession of a firearm without having a firearm owner’s identification (FOID) card (Ill. Rev. Stat. 1987, ch. 38, par. 83—2), and unlawful possession of not more than 2.5 grams of a substance containing cannabis (Ill. Rev. Stat. 1987, ch. 56½, par. 704(a)) and was sentenced to an 18-month term of periodic imprisonment, a $250 fine, and a $100 fine on the convictions, respectively.

Defendant appeals, contending that his pretrial motion to suppress evidence should have been granted because the search of his garage pursuant to a search warrant was based on an earlier unlawful warrantless administrative search of the premises.

Defendant’s motion to suppress evidence alleges that on March 24, 1987, police officers entered a garage at 310 East Elm, Villa Park, Illinois, pursuant to a search warrant, and shortly thereafter arrested and charged him with unlawful use of weapons, possession of a firearm without having a FOID card, and unlawful possession of cannabis. Defendant’s motion further states that the search warrant was obtained through false and misleading allegations. In an amendment to the motion to suppress, defendant also alleges that the “predicate search which was the basis for the search warrant was illegal” because there was no authority for the police and a housing inspector to go upon the property and look into the garage.

At the hearing on the motion to suppress, the testimony shows that defendant lived with his parents at 310 East Elm in Villa Park and rented from them the detached garage to the rear of the residence. The garage is approximately 10 to 15 feet behind the house. Defendant uses the garage to work on cars and store tools. On March 24, 1987, the garage door was secured by a padlock and chain and the one window was boarded up. No one could see inside according to defendant.

On the morning of March 24, 1987, at about 10:45, David Jones, a property maintenance and housing inspector for the Village of Villa Park, and Officer Robert Budig of the village police department went to 310 East Elm. According to Jones, the village’s building department previously received a telephone call from a neighbor complaining that five or six males were seen going in and out of the garage at 310 East Elm. The caller suggested that someone might be living in the garage. If true, according to Jones, this would allegedly constitute a violation of a Villa Park ordinance. Jones decided to investigate the report, and he requested that the Villa Park police department send-an officer to accompany him. Jones stated that it is common for building inspectors to request a police officer to accompany them on certain inspections if going alone would make the inspector uncomfortable. Budig and Jones testified that the purpose of the visit was to determine whether anyone was, in fact, living in the garage.

The two knocked at the door of the house but received no answer. They then went behind the house to inspect the garage to determine if someone was living there. Jones believed he could enter onto the property and search the exterior of the premises for purposes of enforcing code violations. He based this assumption on a village ordinance which allowed certain village officials to enter structures or premises for the purpose of making inspections. They attempted to look into the window of the garage, but were unable to do so because the window was covered. They testified, however, that the pedestrian door, though chained and padlocked, could be opened about two to three inches. They attempted to peer into this small opening, but apparently Officer Budig’s flashlight was not powerful enough to sufficiently illuminate the inside of the dark garage.

Leaving Jones at the garage, Officer Budig then drove to the police station to retrieve a more powerful flashlight. When Budig returned, he and Jones tried again to look into the garage. Budig stated that he saw on a table in the garage a mound of white, powdery substance on a piece of glass which appeared to be cocaine. He said that next to the white powder were two chunks of another substance he believed was “crack” cocaine. He also observed a glass water pipe and a scale. Officer Budig later swore to these facts in an affidavit, and a warrant to search the premises was subsequently issued based on this information.

A search of the garage was conducted at 6:20 p.m. that day according to the search warrant inventory form. The search produced, inter alia, a .20 gauge shotgun with a barrel less than 18 inches in length, less than 2.5 grams of a green, leafy substance later determined to be cannabis, and drug paraphernalia.

Defendant testified that he returned to the garage sometime early in the afternoon of March 24, 1987, and found the condition of the garage to be different from the way he had left it. According to the defendant, the material covering the garage window was pulled away and the window broken so that light could enter the garage. At 7 p.m. that day defendant was arrested. After his arrest, defendant made certain incriminating statements to the police.

Following the circuit court’s denial of the motion to suppress on the basis that the initial inspection of the garage pursuant to the municipal ordinance was not violative of defendant’s constitutional rights and that the search warrant was properly obtained, defendant stipulated to facts to be submitted to the court at a bench trial. The facts so stipulated were that the search of the garage pursuant to the search warrant resulted in the seizure of a shotgun with a barrel less than 18 inches in length and less than 2.5 grams of cannabis and that, following the search, defendant admitted the property seized was his and he did not have a FOID card. Following this stipulation of facts, the circuit court found defendant guilty of the three charges set forth above.

On appeal, defendant has abandoned his contention below that the affidavit for search warrant contained false and misleading allegations and proceeds on the sole ground that the initial entry onto his premises and search of the garage without a warrant was violative of the fourth amendment’s prohibition against unreasonable searches and seizures (U.S. Const., amend. IV). In support thereof, defendant argues that administrative searches of a home, such as conducted here, are significant intrusions upon persons’ fourth amendment rights and, when conducted without a search warrant, have been held to lack the traditional safeguards which the fourth amendment guarantees to individuals, citing Camara v. Municipal Court (1967), 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727.

In responding to this argument, the State concedes that the garage was within the curtilage of the home. Further, the State has not contended that the village ordinance authorizing a village code enforcement official “to enter any structure or premises at any reasonable time for the purpose of making inspections and performing duties under this code” (Villa Park, Ill., Ordinance 2224 (March 16, 1987) (enacting provisions of the 1984 BOCA Basic/National Existing Structures Code)) is constitutional. (See Camara v. Municipal Court (1967), 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (where a similar ordinance authorizing warrantless administrative searches of a home was held violative of the fourth amendment).) Instead, the State maintains, citing Illinois v. Krull (1987), 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160, that the “good faith” exception to the exclusionary rule is applicable here, where the initial search was based upon the officer’s reasonable reliance upon a village ordinance which allowed warrantless administrative inspections on private residential property, even if the ordinance is later deemed unconstitutional.

In Illinois v. Krull, the question before the Supreme Court was whether a similar exception to the exclusionary rule, as set forth in United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (fourth amendment exclusionary rule does not apply to evidence obtained by police officers who acted in objectively reasonable reliance upon a search warrant issued by a magistrate, but where the warrant was ultimately found to be unsupported by probable cause), should be recognized when officers act in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but where the statute is ultimately found to violate the fourth amendment. (Krull, 480 U.S. at 342, 94 L. Ed. 2d at 370, 107 S. Ct. at 1163.) The Court held that the defect in the Illinois statute allowing State officials to inspect records of motor vehicle dealers, parts dealers, automobile scrap processors, and similar businesses without a warrant at any reasonable time, found unconstitutional by the Illinois Supreme Court, was not sufficiently obvious so as to render a police officer’s reliance upon the statute objectively unreasonable. (480 U.S. at 359, 94 L. Ed. 2d at 381, 107 S. Ct. at 1172.) Thus, the “good faith” exception to the exclusionary rule was extended to a warrantless administrative search where the State statute allowing the inspection of certain business premises was subsequently found unconstitutional.

There is a significant difference between the facts in the instant case and those in Illinois v. Krull. The warrantless administrative search undertaken here, as authorized under the municipal ordinance, was of a private residence, whereas in Illinois v. Krull the State statute implicated allowed warrantless administrative inspections of a heavily regulated business. The greater latitude to conduct warrantless inspections of commercial property reflects the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home. (Donovan v. Dewey (1981), 452 U.S. 594, 598-99, 69 L. Ed. 2d 262, 268-69, 101 S. Ct. 2534, 2537-38.) The physical entry of the home is the chief evil against which the wording of the fourth amendment is directed. (Payton v. New York (1980), 445 U.S. 573, 585-86, 63 L. Ed. 2d 639, 650, 100 S. Ct. 1371, 1379-80.) In the absence of consent or exigent circumstances, the entry into a home to conduct a search or make an arrest is unreasonable under the fourth amendment unless done pursuant to a warrant. Steagald v. United States (1981), 451 U.S. 204, 211-12, 68 L. Ed. 2d 38, 45, 101 S. Ct. 1642, 1647.

As this case does not come within the “good faith” exception to the exclusionary rule established in United States v. Leon or Illinois v. Krull, we decline to create another exception to the exclusionary rule which would invade the long-protected sanctity of the home from warrantless searches. Such a judicially created “good faith” exception should be left to the Supreme Court. (See People v. Ross (1985), 133 Ill. App. 3d 66, 73-74, 478 N.E.2d 575.) In view of our holding on this basis, we need not make further inquiry into such potential issues as whether there may be reliance on a municipal ordinance, as is the case here, rather than a State statute, as in Illinois v. Krull, for the “good faith” exception to apply, and whether the officer could objectively reasonably rely on the ordinance which was substantially similar to the ordinance previously held defective over 20 years ago in Camara v. Municipal Court.

We, therefore, conclude that the officer’s peering into the garage within the curtilage of defendant’s home without a warrant and not under some recognized exception to the warrant requirement was violative of defendant’s fourth amendment rights. Where the initial search is unlawful, the information gained therefrom cannot form the basis for the issuance of a search warrant, and evidence so obtained is inadmissible. People v. Bowen (1987), 164 Ill. App. 3d 164, 177-78, 517 N.E.2d 608; see People v. Koniecki (1985), 135 Ill. App. 3d 394, 401, 481 N.E.2d 973.

Accordingly, the denial of the motion to suppress evidence was manifestly erroneous, and the judgment of conviction is reversed. The cause is remanded for a new trial. The evidence seized pursuant to the search warrant and defendant’s statements made subsequent to his arrest are suppressed.

The State requests in its brief, however, that should this court reverse the denial of the suppression order entered below, we also remand to allow evidence to be taken in order to determine whether defendant’s post-arrest statements were otherwise admissible under Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254. In Brown, the Supreme Court held that a confession rendered inadmissible by a prior illegal arrest is admissible if, after considering such factors as whether Miranda warnings were given, the temporal proximity of the arrest and confession, the presence of intervening circumstances and the purpose and flagrancy of the official misconduct, it is shown that the confession is sufficiently attenuated from the taint of the illegal arrest. Brown, 422 U.S. at 602-04, 45 L. Ed. 2d at 426-27, 95 S. Ct. at 2261-62.

As the circuit court denied defendant’s motion to suppress, the State had no reason to urge admission of defendant’s statements pursuant to Brown v. Illinois. Thus, there is no evidence in this record from which we can properly determine whether the statements were sufficiently attenuated from the taint of the illegal arrest. Consequently, it will be necessary, should the State seek to admit defendant’s statements at a new trial, that the trial court conduct a pretrial evidentiary hearing to ascertain whether the statements are admissible under Brown v. Illinois. See Brown, 422 U.S. at 604, 45 L. Ed. 2d at 427, 95 S. Ct. at 2262; see also Morales v. New York (1969), 396 U.S. 102, 24 L. Ed. 2d 299, 90 S. Ct. 291.

The judgment of the circuit court is reversed, and the cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

McLAREN, J., concurs.

JUSTICE INGLIS,

dissenting:

I respectfully dissent from the majority and would find that the good-faith exception to the exclusionary rule as articulated in Illinois v. Krull (1987), 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160, is controlling in the case at bar.

The good-faith exception was first recognized by the United States Supreme Court in United States v. Leon (1984), 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, and was later expanded in Illinois v. Krull. In Leon, the defendant was arrested after a search of his residence revealed a large quantity of narcotics. The search was based on a facially valid search warrant later determined to be invalid. The Court held that evidence seized on the authority of a search warrant later found to be invalid need not be excluded if the police officer’s reliance on the warrant was objectively reasonable. The Court reasoned that to exclude evidence under these circumstances would not further the underlying purpose of the exclusionary rule, which is to deter police misconduct, because at the time of the search and seizure the police officer was acting as a reasonable police officer should. 468 U.S. at 918-19, 82 L. Ed. 2d at 696, 104 S. Ct. at 3418.

In Krull, relying on the same rationale used in Leon, the Court extended the good-faith exception to situations in which a police officer conducts a search and seizure under the authority of a statute later found to be unconstitutional. The Court reasoned:

“The approach used in Leon is equally applicable to the present case. The application of the exclusionary rule to suppress evidence obtained by an officer acting in objectively reasonable reliance on a statute would have as little deterrent effect on the officer’s actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant. Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.” (Krull, 480 U.S. at 349-50, 94 L. Ed. 2d at 375, 107 S. Ct. at 1167.)

To fit within the Krull type of good-faith exception, the officer’s reliance on the constitutionally defective statute must be objectively reasonable. Further, the legislature which enacted the statute must not have wholly abandoned its responsibility to enact laws consistent with the constitution. Krull, 480 U.S. at 355, 94 L. Ed. 2d at 378-79, 107 S. Ct. at 1170.

The majority found that the holding in Krull was inapplicable to the case at bar because Krull involved an inspection of a commercial property, whereas in the case at bar a private residence was inspected. I find no support for the distinction made by the majority. (See People v. Mashaney (1987), 160 Ill. App. 3d 390, 393-94.) Krull was substantially based on the holding and reasoning in Leon which involved a search of a private residence. While it is true that a private dwelling is generally afforded more protection than commercial property (Donovan v. Dewey (1981), 452 U.S. 594, 598-99, 69 L. Ed. 2d 262, 268-69, 101 S. Ct. 2534, 2537-38), the protection is provided through meeting the good-faith requirement, not by barring the application of the exception altogether.

In applying the good-faith requirement to the case at bar, I believe the police officer’s actions fell within the Krull exception to the exclusionary rule. It does not seem unreasonable for an officer to rely on an ordinance designed to enforce the city’s building codes. The applicable standard is that of a “reasonable officer,” not of an attorney, or other legal professional, trained to research the law.

In addition, it does not appear to me that the Village “wholly abandoned” its obligation to pass constitutional laws. While we may declare the ordinance to be unconstitutional, that fact alone does not suggest that the Village “wholly abandoned” its obligation. If it did, the good-faith exception in Krull could never be met.

Therefore, I respectfully dissent.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMANTHA WALKER, Defendant-Appellant.
    Third District
    No. 3—88—0380
    Opinion filed December 7, 1989.

      Catherine Fitzsimmons, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Vicki L. Seidl, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Samantha Walker appeals from her convictions for the offenses of residential burglary, robbery, and theft, for which she was sentenced to six years in prison.

Walker, who is black, was tried before a jury in the circuit court of Will County. The State used peremptory challenges to excuse all three black members of the venire, and at the end of the jury selection, defense counsel objected to the racial composition of the jury. The trial judge found that the defendant had established a prima facie case of discrimination under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. After the prosecutor stated his reasons for exercising the challenges, the trial court ruled that the State had not systematically excluded minority members of the jury panel on the basis of race.

The testimony at trial disclosed that 90-year-old Willie Wesley invited defendant to stay in his home when she had nowhere else to go. Wesley had known defendant all her life and had raised her mother. After defendant had been there for three days, Wesley became suspicious that she was taking his money, some of which he carried in his shirt pocket and a larger amount in his pants pocket. When he caught her crawling on the floor of his bedroom at 3 a.m. going through some clothing, he ordered her to move out. He did not see her again.

A short time later, defendant was visiting a friend, Rosie Smith, who needed money for a car payment. Defendant and Rosie Smith happened to meet two brothers, Terrion and Toroyana Caruth, whom they knew, in the hallway of an apartment building. At defendant’s request, the men agreed to go to Wesley’s home. The women stayed in the car while the young men went to the door and asked Wesley if they could use his phone because they had had an accident. He let them in, and after making a telephone call, the two left only to return a short time later. Again they asked to use the telephone, and Wesley let them in. While one man went to the telephone, the other grabbed Wesley from behind, took $9,000 out of the hip pocket of his pants, and threw him to the floor. Both men then ran out to the car and drove away. Defendant and Rosie Smith each received $2,000 while the Caruth brothers divided the rest of the money.

When defendant was first questioned, she denied any involvement in the robbery and said she had heard about the robbery through the newspapers. A few days later during a subsequent interrogation, defendant related the facts as set forth above. At trial, defendant presented no evidence, and the jury returned a verdict of guilty on the charges of burglary, robbery, and theft. After sentencing, this appeal was perfected.

Defendant first contends that the State did not meet its burden of establishing a racially neutral reason for each of the excluded black jurors, particularly Mrs. Linda Gant. As to the other two, Corda Page was excused because he had voted “not guilty” while serving on a criminal jury four years earlier in a case which ended in a mistrial, and Leon Harvey was excused because his 17-year-old daughter had been convicted of theft. We agree with the trial court that in both of these cases, the reasons given were racially neutral.

As to Gant, the prosecutor gave several reasons including the fact that the State’s Attorney’s office has had a number of cases where the defendant’s last name was “Gant” and that she answered the voir dire questions very quickly without any time for reflection. Furthermore, she lived near the crime scene and had a 14-year-old daughter who might have known defendant. Also, Gant is employed by the Illinois State Police at the Joliet crime lab, which the prosecutor felt could be a potential problem.

Defendant argues that these reasons are “shams.” She asserts that Gant’s address in Joliet is about three miles from Wesley’s home in Lockport and, in the footnote of her brief, asks this court to take judicial notice of the distance between the streets involved. Defendant argues that there is nothing to indicate that she and Gant’s daughter were in school together. Defendant also disparages the other reasons given by the State. It is not necessary for us to analyze these arguments, however, because, in our view, the State met its burden when it pointed out the fact that Gant is employed by the Illinois State Police at the Joliet crime lab.

Defendant asserts that the State accepted a white juror whose son is employed by the Will County sheriff’s department, which indicates that the prosecutor’s excuse as to Gant was not racially neutral, and she further asserts that Gant is a data entry operator, not directly involved with forensic evidence, and hence, would have no bias specific to this case.

In determining whether the prosecutor’s reasons were legitimate and racially neutral, we recognize that “the prosecutor’s explanation need not rise to the level of justifying exercise of a challenge for cause.” (People v. Talley (1987), 152 Ill. App. 3d 971, 987, 504 N.E.2d 1318, 1328, citing Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.) In our view, Gant’s employment by a law enforcement agency was sufficient reason to excuse her as a potential juror even though her specific duties did not relate to the case to be decided. Certainly the prosecutor may excuse a potential juror whose possible bias in favor of the State might jeopardize the fairness of defendant’s trial and might even result in a reversal on appeal. As to the white juror who was accepted, employment of his son by a law enforcement agency is less likely to affect the juror’s allegiance than would the juror’s own employment. The trial court’s finding that the prosecutor had not systematically excluded minority persons from the jury because of their being members of a minority was not contrary to the manifest weight of the evidence.

Next, defendant contends that she was not proven guilty of residential burglary beyond a reasonable doubt since the evidence established that the victim gave the Caruth brothers permission to enter his home. The crime of residential burglary is defined as follows:

“A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1987, ch. 38, par. 19—3(a).)

Since Wesley himself testified that he gave the two men permission to enter his home to use his telephone, defendant argues that the State failed to prove the absence of authority to enter.

Illinois courts have rejected this argument numerous times. In People v. Woolsey (1975), 24 Ill. App. 3d 1079, 1082, 322 N.E.2d 614, 617, the court quoted with approval 93 A.L.R.2d 531, 537 (1964), as follows:

“While unlimited consent to enter is always a defense against a charge of burglary at common law or under statutes which include in the definition of the offense breaking and entering or the use of force in the entry, a consent limited as to place, time, or purpose is not a defense where entry occurs outside the limitations stated or implied.”

Woolsey involved a burglary of a roofing business and the theft of materials and two vehicles committed at 3 a.m. by an employee who had a key for use in connection with his work. The reviewing court held that the State had proved beyond a reasonable doubt that the defendant had acted without authority and upheld the conviction for burglary.

In People v. Fisher (1980), 83 Ill. App. 3d 619, 404 N.E.2d 859, this same ruling was applied to a residential burglary. Fisher and two companions arranged to pick up the victim at his apartment to go to a party together. When they arrived, the victim served them some wine and visited with them, until they pulled guns and proceeded to ransack the apartment and take money, appliances, watches, and wallets from the victim and his roommate, who were bound and gagged by the assailants. The defendants’ convictions for burglary were upheld, with the court stating:

“[Defendants were given consent to enter the apartment for the limited purpose of a social visit, not to burglarize the premises. Defendants’ entry that evening was gained as a result of misrepresentation and subterfuge. While defendants entered the apartment under the pretense of picking up [one victim] to drop him off at a party, they secretly planned to steal his property. [The victims] were deceived into allowing defendants into their apartment, and such entry was not in accordance with the will of the occupants and is therefore unauthorized.” 83 Ill. App. 3d at 623, 404 N.E.2d at 863.

Accord People v. Racanelli (1985), 132 Ill. App. 3d 124, 476 N.E.2d 1179; People v. Hudson (1983), 113 Ill. App. 3d 1041, 448 N.E.2d 178.

In the case before us, when Wesley permitted the Caruth brothers to come into his home to use the telephone to summon help, he was authorizing their presence for a specific purpose. Once one of the men attacked him and took his money from his person and his home, that authorization ended. The evidence established beyond a reasonable doubt that the Caruth brothers entered with the intent to commit a robbery and that such entry was unauthorized.

Defendant’s final assertion of error concerns her sentencing. Defendant contends that the trial court improperly took into account all three of her convictions (theft, robbery, and residential burglary) at the time the six-year sentence was imposed. She relies upon the fact that, where theft and robbery convictions are based upon the same physical act, the theft conviction must be vacated. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) She seeks to have this cause remanded for resentencing.

Defendant is correct that separate convictions for robbery and theft arising out of the same physical act are improper. Here the jury returned verdicts of guilty for three crimes, and judgment was entered on all verdicts. The mittimus to the Department of Corrections also lists defendant’s conviction for all three crimes. No order vacating the theft conviction appears in the record, and hence, that conviction must be vacated here.

The transcript of sentencing hearing discloses that defense counsel advised the court that the theft conviction should “merge into the robbery for sentencing purposes,” and recommended that the court “impose one sentence on the robbery and the residential burglary.” The State’s Attorney agreed that the theft merges into the robbery, and the trial judge stated, “That would be my thought.”

We conclude from the record that the trial court did not take into account the theft conviction in sentencing defendant to six years. Resentencing is not necessary where there is no indication that the sentencing court considered the vacated conviction. (People v. Sanford (1983), 119 Ill. App. 3d 160, 456 N.E.2d 333.) Here the indication is that the trial court did not consider the theft conviction.

We vacate the conviction for theft and affirm the convictions and sentence for residential burglary and robbery.

Affirmed in part; vacated in part.

WOMBACHER, P.J., and HEIPLE, J., concur.