author: PRESIDING JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. MAURICE MITCHELL, Petitioner-Appellant.
    First District (2nd Division)
    No. 1 — 88—2911
    Opinion filed October 15, 1991.
    — Rehearing denied December 2, 1991.

      Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Judith Hannah, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Maurice Mitchell (Maurice) appeals from what he claims was the circuit court’s improper dismissal of his post-conviction petition as “frivolous or *** patently without merit” more than 30 days after it was filed and docketed. He maintains that the allegations in his petition should have been given the benefit of an evidentiary hearing: (1) that the court before which he was convicted of murder erroneously refused to instruct the jury that it could find that he had used force in defense of himself, or that he could be guilty of voluntary manslaughter (serious provocation by victim), voluntary manslaughter (unreasonable belief that the use of force was justified), or involuntary manslaughter; and (2) that the State improperly discriminated against black venirepersons in exercising its peremptory challenges during jury selection. He seeks reversal of the court’s dismissal, and either: reversal of his conviction with a remand for a new trial, a remand for a hearing on his claim of discrimination during voir dire, or a hearing on the merits of his petition.

Following a jury trial, Maurice was convicted of the murder of his wife, Debra, and was sentenced to 40 years in the custody of the Illinois Department of Corrections. After his conviction was affirmed in People v. Mitchell (1987), 163 Ill. App. 3d 58, Maurice, as noted above, filed a petition for a post-conviction hearing. The “Notice/Proof of Service” accompanying the petition states that it was forwarded to the clerk of the Cook County circuit court on August 10, 1988. The clerk, however, stamped it as having been filed on August 15, 1988. The petition was dismissed on September 14, 1988.

Maurice’s first contention is that the circuit court erred when it summarily dismissed his petition, arguing that such order was entered more than 30 days after the petition was filed and docketed. He asserts that August 10, 1988, the date on which the petition was notarized as having been forwarded to the clerk, and not August 15, 1988, the date on which the clerk stamped the petition as having been filed, should control as the date it was “filed and docketed.” The State responds that the latter date should govern.

Section 122 — 2.1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1) states:

“(a) Within 30 days after the filing and docketing of each petition [for a post-conviction hearing], the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order ***.
(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122 — 4 through 122 — 6.”

The court in People v. Byers (1990), 196 Ill. App. 3d 502, 509, held that the 30-day period begins when the petition is filed, even if, at a later date, it is “docketed on the trial court’s call.” While the issue in the instant case was not addressed in Byers or in People v. Phillips (1989), 183 Ill. App. 3d 417, we note that in Byers, the date of filing was assumed to be the date on which the petition “was file stamped” (Byers, 196 Ill. App. 3d at 509), and in Phillips, the date on which it was filed “by the circuit clerk.” (Phillips, 183 Ill. App. 3d at 421.) In light of the holding in these cases and the plain meaning of the statute, we rule that in the instant case the clerk’s filing stamp, and not a notarization that the petition was “forward[ed] to” the clerk on a specific date, should determine the date of filing.

This holding does not conflict, as Maurice implies, with the “pro-mailing” policy expressed in People v. Pagel (1990), 197 Ill. App. 3d 305, 307, which held that for purposes of determining the timeliness of the filing of a post-trial “motion to withdraw [a] guilty plea,” the date on which it is notarized as having been sent, and not the date on which it is postmarked, is controlling. Pagel based its holding on Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 340-42, which held “that notices of appeal mailed within the 30-day period [following entry of the judgment appealed from] and received thereafter are timely filed.” The court noted that “while older case law has held that papers are not filed until actually committed to the control and custody of the clerk [citation], more recent authority suggests that this rule should be modified to take into account the widespread practice of filing documents by mail.” (126 Ill. 2d at 340.) It compared the filing of a notice of appeal with the “filing [of] records, briefs or other papers required to be filed within a specified time,” which according to Supreme Court Rule 373 (107 Ill. 2d R. 373) were considered filed when mailed. Supreme Court Rule 373 “was designed to make it unnecessary for counsel to make sure that briefs and other papers mailed before the filing date actually reach the reviewing court within the time limit” (107 Ill. 2d R. 373, Committee Comments, at 476). The court also explained:

“[A] liberal pro-mailing policy is more equitable, since it places smaller firms which may lack telefax machines and messenger services on an equal footing with their larger competitors. We express no opinion as to whether the same policy would apply to other papers filed in the circuit court, such as post-trial motions.” (Harrisburg, 126 Ill. 2d at 342.)

Our holding in the case at bar disregards none of the concerns expressed in Harrisburg-Raleigh Airport. Instead, it simply requires the court to “examine [the] petition and enter an order thereon” within the 30-day period which is clearly specified in the statute and it does not prejudice the petitioner in any way. Accordingly, we hold that in dismissing the petition on September 14, 1988, the court complied faithfully with the time provisions of the statute.

Next, Maurice alleges that the circuit court erred in dismissing, as “frivolous or *** patently without merit,” his claim that he was improperly refused certain jury instructions during his trial. The State first responds that a trial court’s failure to tender a particular instruction is not cognizable in a post-conviction hearing.

Section 122 — 1 of the Code states:

“Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.” Ill. Rev. Stat. 1987, ch. 38, par. 122-1.

The failure to give required jury instructions is cognizable in a post-conviction hearing when the failure “potentially violate[s] the constitutional right to have the jury adequately apprised of the appropriate law.” (People v. Flowers (1990), 138 Ill. 2d 218, 236.) In Flowers, the petitioner claimed that although the jury was instructed on both murder and voluntary manslaughter (unreasonable belief that killing was justified), it was error not to inform it that in order to convict him of murder, “the State must prove that the defendant did not believe circumstances existed which justified the use of the force that he used.” (138 Ill. 2d at 225-26.) The claim was held to be cognizable even though the requirement that the State prove that element was imposed by the applicable statute and not by the United States or Illinois constitutions, apparently because the instructions failed to apprise the jury of part of the State’s burden of proof, an apprisal “ ‘essential to a fair trial’ ” (quoting People v. Reddick (1988), 123 Ill. 2d 184, 198). Flowers, 138 Ill. 2d at 235-37.

In the instant case, the claim is not that the jury was misinformed about the burden of proof imposed upon the State for a murder conviction, but rather that the jury was not informed about the possibility of convicting Maurice on the lesser charge of voluntary manslaughter or involuntary manslaughter, or of acquitting him entirely on the ground of self-defense. Maurice cites no authority holding that such a failure raises a “constitutional” question. We hold, however, that it does raise such a question and is therefore cognizable in a post-conviction proceeding.

Beck v. Alabama (1980), 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382, is authority for the proposition that “if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [a State] is constitutionally prohibited from withdrawing that option from the jury in a capital case.” (447 U.S. at 638, 65 L. Ed. 2d at 403, 100 S. Ct. at 2390.) The Court, however, declined to decide “whether the Due Process Clause [(U.S. Const, amend. XIV, §1)] would require the giving of such instructions in a noncapital case.” 447 U.S. at 638 n.14, 65 L. Ed. 2d at 403 n.14, 100 S. Ct. at 2390 n.14.

In People v. Bryant (1986), 113 Ill. 2d 497, 502, the court held:

“[A] defendant may be entitled to have the jury instructed on a less serious offense that is included in the one he is charged with. [Citing Beck, 447 U.S. at 636-37, 65 L. Ed. 2d at 401-02, 100 S. Ct. at 2388-89.] The reason for this is clear: an instruction on a lesser offense provides an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.”

Further, People v. Joyner (1972), 50 Ill. 2d 302, held that “in homicide cases, if there is evidence in the record which, if believed by the jury, would reduce the crime to manslaughter, an instruction defining that crime should be given, if requested.” (50 Ill. 2d at 306.) Failure to so instruct, the court noted, and thus failure to fulfill “the requirement that the jury be fully and properly instructed,” was held to be so “important with reference to the fundamental fairness of [defendants’] trial *** [that it] necessitate^] a remand for a new trial.” 50 Ill. 2d at 307.

Although in neither Bryant nor Joyner did the court state that the rule regarding instruction on lesser included offenses was constitutionally required, we fail to apprehend any difference between the “constitutional right to have the jury adequately apprised of the appropriate law” discussed in Flowers (138 Ill. 2d at 236), and the “requirement that the jury be fully and properly instructed” discussed in Joyner (50 Ill. 2d at 307). Accordingly, and especially in light of the Bryant court’s reliance upon the due process discussion in Beck (Bryant, 113 Ill. 2d at 502), we hold that the alleged impropriety of the trial court’s refusal to instruct the jury on voluntary or involuntary manslaughter is cognizable in a post-conviction proceeding. Because a successful claim of self-defense would have certainly resulted in Maurice’s acquittal rather than in his mere conviction for a lesser offense, it follows that the issue of the trial court’s failure to instruct the jury on that defense is also cognizable in a post-conviction proceeding. See People v. Fryman (1954), 4 Ill. 2d 224, 231 (“[A] defendant is entitled to the benefit of any defense shown by the entire evidence”).

Nevertheless, the State argues, the issues presented by the refusal to tender the requested instructions are res judicata, as they were decided on direct appeal in Mitchell, and legal developments subsequent to Mitchell do not call into question that court’s disposition of the issue; accordingly, the trial court correctly dismissed that portion of Maurice’s petition without further hearing.

As the court held in People v. Owens (1989), 129 Ill. 2d 303, 308, “[T]he scope of post-conviction review is limited to issues which have not been, and could not have been, previously adjudicated [citation].” “[A]ll issues actually decided on direct appeal are res judicata ***.” People v. Stewart (1988), 123 Ill. 2d 368, 372.

Maurice admits that the court in Mitchell decided whether the trial court erred in refusing to submit the disputed instructions. Nevertheless, he maintains, res judicata does not bar an issue from being reexamined on the merits when “fundamental fairness so requires.” (People v. Neal (1990), 142 Ill. 2d 140, 146.) Moreover, res judicata is not a bar when “the right relied on has been recognized for the first time after the direct appeal.” (People v. Ikerd (1970), 47 Ill. 2d 211, 212.) He cites several cases which illustrate this approach.

In People v. Strader (1967), 38 Ill. 2d 93, the court which had affirmed the defendant’s conviction on direct appeal had held that even if the defendant had been coerced into making a confession which was admitted at trial, he had not been prejudiced by the admission of the statement. Subsequent to the affirmance, however, Jackson v. Denno (1964), 378 U.S. 368, 376, 12 L. Ed. 2d 908, 915, 84 S. Ct. 1774, 1780, held that a conviction may not be “founded, in whole or in part, upon an involuntary confession *** even though there is ample evidence aside from the confession to support the conviction.” The rule in Jackson was held in Boles v. Stevenson (1964), 379 U.S. 43, 45, 13 L. Ed. 2d 109, 111, 85 S. Ct. 174, 176, to apply retroactively. Accordingly, the issue was not res judicata and could be addressed in a post-conviction petition. Strader, 38 Ill. 2d at 94-97.

Next, in People v. Hopkins (1976), 41 Ill. App. 3d 430, although the defendant’s sentence had been affirmed on direct appeal against a claim that it was excessive, the court had failed to discuss the effect of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.), which had become effective before disposition of the defendant’s appeal. Subsequently, several Illinois Supreme Court decisions held that the Unified Code should govern the length of the sentences of persons whose appeals were pending when it became law. Accordingly, res judicata was held not to apply. Hopkins, 41 Ill. App. 3d at 431-32.

Finally, in People v. Cowherd (1983), 114 Ill. App. 3d 894, 896, the defendant’s conviction was upheld against a claim that prejudicial error had been committed when a police detective testified at trial “to statements made by the defendant and referred to certain plea negotiations with defendant.” The court had “concluded that the rule [excluding such testimony] contemplate[d] *** actual plea discussions between the accused and the competent State authorities charged with the negotiations of guilty pleas and sentences.” (114 Ill. App. 3d at 898.) Subsequently, People v. Hill (1980), 78 Ill. 2d 465, 473, held that the fact that the party to whom a plea-related statement was made did not have the actual authority to enter negotiations is not, standing by itself, sufficient to render the statement admissible. Accordingly, res judicata was held not to apply. Cowherd, 114 Ill. App. 3d at 896-98.

Applying the principles of the foregoing cases to Maurice’s claim that the trial court erred in not submitting the disputed instructions to the jury, we hold that res judicata bars reexamination of this issue. The court held in Mitchell that

“the trial court should have given these instructions if there was even very slight evidence presented which might legitimately lead a jury to the conclusion that Maurice committed voluntary manslaughter, involuntary manslaughter, or acted in self-defense. [Citations.]
The defense has not met the above requirement.” (Mitchell, 163 Ill. App. 3d at 66-67.)

The court then considered Maurice’s complaint regarding the trial judge’s refusal to give instructions on self-defense and on voluntary manslaughter (unreasonable belief that the use of force was justified), holding:

“The evidence adduced at trial by the People was totally consistent with a murder charge. Especially noteworthy is the fact that *** [the wound inflicted upon Debra] is not the type of wound generally inflicted by an individual acting in self-defense. Moreover, the defendant himself testified that the killing was an accident.”

The court further noted that although a witness had testified at trial that Maurice had told her that he had killed Debra in a fight, this statement was inconsistent with another statement he made to her that Debra had cut herself. The court held that under such circumstances, the testimony that he had killed Debra in a fight “is not by itself enough evidence to warrant a voluntary manslaughter instruction.” The court quoted People v. Bratcher (1976), 63 Ill. 2d 534, 540-41: “ ‘To hold otherwise would permit a defendant to demand unlimited instructions, which are wholly unrelated to the case but are based upon the merest factual reference or witness’ comment.’ (Emphasis added.)” Mitchell, 163 Ill. App. 3d at 67.

None of the cases cited by Maurice which were decided subsequent to Mitchell warrant reexamination of this issue. People v. Robinson (1987), 163 Ill. App. 3d 754, 770, held that a jury should have been instructed on self-defense when the defendant testified

“that he had become frightened by the victim’s yelling at him and that as he then grabbed for the shotgun to defend himself and struggled over it with a companion of the victim, who had produced it, the shotgun fell and accidentally discharged, killing the victim.” (163 Ill. App. 3d at 770.) Robinson, however, distinguished Mitchell on the ground that although Maurice had testified that he had intentionally struggled with a victim who was wielding a knife, but that the ensuing fatal wound was accidental, his testimony showed not that he was attempting to defend himself but that he intended to secure the knife. Moreover, there was evidence that he had made statements to a witness which contradicted his trial testimony, and finally, the wound was inconsistent with a claim of self-defense. Robinson, 163 Ill . App. 3d at 771 n.l.

People v. Whitelow (1987), 162 Ill. App. 3d 626, 630-31, is similar to Robinson. In Whitelow, there had been trial evidence that the defendant had grabbed a gun while fleeing from the victim, who had beaten him earlier, and from another person, who had a broken bottle in his hand, and the gun was alleged to have accidentally discharged. Whitelow does not show a departure from the principles followed in Mitchell. Finally, the court in People v. Everette (1990), 141 Ill. 2d 147, enunciated no new rule of law which would warrant lifting the bar of res judicata. Everette reaffirmed the admonition in Bratcher, upon which Mitchell had relied (Mitchell, 163 Ill. App. 3d at 67), against tendering instructions “based upon the merest factual reference or witness’ comment.” (Everette, 141 Ill. 2d at 157.) Moreover, the court in Everette, which affirmed a trial court’s refusal to instruct a jury on self-defense, specifically approved of Robinson:

“[Tjhose decisions which refused to instruct the jury as to self-defense did so because there was insufficient evidence in the record to support the instruction and not because there was an inherent or definitional contradiction in the defenses [of self-defense and accident]. *** Those cases that allowed the jury to be charged with self-defense instructions had demonstrated in the record evidence to support both defenses.” 141 Ill. 2d at 154-55.

In discussing Maurice’s claim that the trial court erred in refusing his instruction on voluntary manslaughter (serious provocation by victim), the court in Mitchell distinguished People v. Pietryzk (1987), 153 Ill. App. 3d 428, on the ground that “in Pietryzk the defendant conceded that he intended to cause injury and that the victim’s death was not an accident.” (Mitchell, 163 Ill. App. 3d at 68.) It also cited People v. Phillips (1987), 159 Ill. App. 3d 142, in which a new trial was ordered

“because the circuit court failed to give an instruction on voluntary manslaughter-sudden passion, despite the defendant’s testimony that he purposely acted after a disagreement with the deceased. In Phillips there was some evidence that the defendant had the intent to cause serious bodily harm; thus, a voluntary manslaughter instruction should have been given. In the instant case, however, there was insufficient evidence before the jury to satisfy the intent element of the crime of voluntary manslaughter ***.” (Mitchell, 163 Ill. App. 3d at 68.)

In furtherance of his attempt to thwart the application of res judicata on this issue, Maurice relies upon Reddick (123 Ill. 2d 184) and People v. Healy (1988), 168 Ill. App. 3d 349, both decided after Mitchell. We note, however, that Maurice’s argument relies upon the Mitchell court’s overstatement of the holding in Phillips. In Phillips, the State had misstatement to prove “that defendant stabbed Roberts [the victim] without provocation and had gone into his office [wherein the stabbing occurred] with the intent of stabbing him.” (159 Ill. App. 3d at 148.) The defendant had testified “that he armed himself with the knife only for the purpose of frightening Roberts so he would quit harassing him with no intent of using it. *** [And] that Roberts grabbed the knife from defendant’s waistband and that Roberts attempted to stab him.” (159 Ill. App. 3d at 148.) The Phillips court held that a voluntary manslaughter instruction was required not because “there was some evidence that the defendant had the intent to cause serious bodily harm,” as stated in Mitchell (163 Ill. App. 3d at 68), but rather because there was evidence that the defendant had not “entered the combat with the intention of using the knife,” and had killed the victim because he had been provoked by him in the course of mutual combat. Phillips, 159 Ill. App. 3d at 148-49.

In view of the foregoing, it is clear to us that when the court in Mitchell discussed “the intent element of the crime of voluntary manslaughter” (Mitchell, 163 Ill. App. 3d at 68), it was not basing its decision, as Maurice asserts, on the erroneous supposition that voluntary manslaughter instructions were not required because there was not “ ‘some evidence’ that he intended to and did stab the deceased [citation], or that he intended to cause seriously [sic] bodily harm” (quoting Mitchell, 163 Ill. App. 3d at 68); Maurice concedes that there was evidence of this intent. Rather, the court based its decision on the lack of evidence that the intent to kill or to cause serious bodily harm resulted from provocation by the victim.

Neither Reddick nor Healy provides any new rule which would justify lifting the bar of res judicata on this issue. Reddick merely noted that “if a defendant in a murder trial presents sufficient evidence to raise [the issue of intense passion, so as to] reduce the charge of murder to voluntary manslaughter, then to sustain the murder conviction, the People must prove beyond a reasonable doubt that those defenses are meritless, and must also prove beyond a reasonable doubt the statutory elements of murder [which include the element of intent].” (Reddick, 123 Ill. 2d at 197.) In Healy, the court held that the jury should have been instructed on voluntary manslaughter (serious provocation by victim) because there “was evidence at trial that both men [the defendant and the victim] were intoxicated and *** that both men were pushing and shoving each other.” Additionally, there was evidence that the victim had attacked both the defendant and his companion. (Healy, 168 Ill. App. 3d at 353.) Healy, however, neither enunciated a new rule of law nor recognized a new right; it based its holding on the rule that “mutual combat is recognized in Illinois as adequate provocation, sufficient to reduce a homicide to voluntary manslaughter” and on the rule that “intoxication of the parties engaged in combat may contribute to a finding of voluntary manslaughter” (168 Ill. App. 3d at 353), both of which rules were recognized and applied in Pietryzk. (Pietryzk, 153 Ill. App. 3d at 435-36.) Accordingly, res judicata bars reexamination of this issue.

Finally, the Mitchell court addressed Maurice’s claim that the trial court erred in refusing his instructions on involuntary manslaughter:

“[T]here was inadequate evidence of the requisite intent: recklessness. The defendant can point to no evidence in the record that suggests that he acted in conscious disregard of a risk. [Citations.] On the contrary, according to his testimony he was attempting to eliminate, or at least to mitigate, a risk by getting the knife away from Debra.” (Mitchell, 163 Ill. App. 3d at 68.)

None of the later cases upon which Maurice relies, however, calls into question the propriety of the court’s holding. (See People v. Banks (1989), 192 Ill. App. 3d 986, 996-97; People v. Consago (1988), 170 Ill. App. 3d 982, 985-86; Robinson, 163 Ill. App. 3d at 778-79.) Consequently, reconsideration of that issue is also barred by res judicata.

Maurice’s next claim is that the circuit court erred in summarily dismissing that part of his petition relating to his claim that at his original trial, the State improperly discriminated against black venirepersons in exercising peremptory challenges during the voir dire. Here again, the State replies that this issue is res judicata as a result of its having been decided adversely to Maurice on direct appeal.

During the selection of the jury, Maurice unsuccessfully moved for a mistrial on the ground that the prosecution had, at that point, exercised three of its four peremptory challenges to exclude black people from the jury. After the State had exercised its sixth and seventh peremptory challenges, Maurice renewed his motion for a mistrial on the ground that “[t]he State is systematically excluding Black people from this jury.” This motion was also denied.

On appeal in Mitchell, the court held:

“Since the record does not indicate the race of the prospective jurors, this court cannot determine whether the People purposefully discriminated against blacks when picking the jury * * * * * *
In the case sub judiee *** the only record of the race of the excluded jurors is the statement of defense counsel. Neither is there any record of the race of the remainder of the venire. Without such information, the defendant has not made a prima facie case of purposeful discrimination. [Citation.] Consequently, he has waived the *** issue.” (Mitchell, 163 Ill. App. 3d at 69.)

The rule on which Maurice’s claim on direct appeal relied, that “a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial” (Batson v. Kentucky (1986), 476 U.S. 79, 96, 90 L. Ed. 2d 69, 87, 106 S. Ct. 1712, 1723), was decided after his conviction but before his appeal was decided. Griffith v. Kentucky (1987), 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716, held that Bat-son was retroactively applicable to all cases pending on direct review when the decision was announced. (See People v. McDonald (1988), 125 Ill. 2d 182, 188.) The court in McDonald reviewed a trial court’s finding of purposeful discrimination which had been made after the Illinois Supreme Court, in response to Batson and Griffith, had ordered the trial court to make such a determination. 125 Ill. 2d at 188.

On appeal from that finding, the State claimed that the defendants had waived their Batson claim because the original voir dire record failed to disclose the race of the veniremen. The record demonstrated only that the defendants had made timely objections to the striking of 16 black veniremen from the jury. The court held:

“While we agree with the State that the record must disclose the race of the veniremen in order to provide for meaningful appellate review [citation], we disagree with the State insofar as it claims that the deficiencies in the original voir dire record in this case result in waiver of defendants’ Batson claim. The precise purpose for which we remanded this case was to afford defendants an opportunity to substantiate their claim, in recognition of the *** Batson decision. Furthermore, defendants in this case requested leave of court to establish the race of the venire and the jury on the record at the conclusion of voir dire and before the jury was sworn. The State prevailed in its objection to defendants’ attempts to substantiate their claim, and cannot now be heard to complain that the issue has been waived because of a deficient record.” (125 Ill. 2d at 194-95.)

Even if the McDonald court based its holding only in part on the defendants’ request for “leave of court to establish the race of the venire and the jury on the record” (125 Ill. 2d at 195), later cases have not held the failure to make such a request to constitute waiver of a Batson claim. In People v. Andrews (1989), 132 Ill. 2d 451, the defendant, whose case fell within the retroactivity rule announced in Griffith, had asked the trial court, following voir dire, to let the record reflect that the State had exercised all eight of its peremptory challenges against blacks, and that the jury had six black members. (132 Ill. 2d at 460.) On appeal, the court held that “[although if the record before us were completely devoid of any evidence to support defendant’s Batson claim, defendant might have waived his right to a Batson hearing ***, the statements of defendant’s trial counsel provide sufficient reason *** to remand this case for a Batson hearing.” (132 Ill. 2d at 462-63.) The court additionally noted:

“[A]ll the evidence defendant may eventually present may not be represented in the record before us; the trial judge may have kept notes written contemporaneously during voir dire [citation], or may recall certain information from his own observation of the venirepersons in this case; defendant may also wish to call his defense counsel along with some or all of the stricken venirepersons to testify at his hearing [citation].” 132 Ill. 2d at 463.

Following the decisions in McDonald and Andrews, the court in People v. Lann (1990), 194 Ill. App. 3d 623, held, regarding a defendant whose case fell within the retroactivity rule of Griffith, that “deficiencies in the voir dire record do not result in waiver of a Batson claim.” (194 Ill. App. 3d at 633.) In Lann, there was no indication about the race either of the excluded jurors or of the members of the venire. Because Mitchell’s holding of waiver has been impliedly overruled by these later cases, res judicata should not apply, and this portion of Maurice’s petition should not have been dismissed as “frivolous or *** without merit.” Accordingly, the trial court’s judgment to that effect is reversed, and this cause is remanded for further proceedings consistent with the views expressed in this opinion. See People v. Garrett (1990), 139 Ill. 2d 189, 195; People v. Suarez (1991), 238 Ill. App. 3d 110, 125-26.

Affirmed in part; reversed in part and remanded.

HARTMAN and McCORMICK,JJ., concur.

       Although Judge McCormick did not participate in the oral argument had in this case, he has read the briefs, audited the tape made at oral argument, and has otherwise participated in the decision-making process.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMIE HARDEN, a/k/a Mayo Turner, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 89—3254
    Opinion filed October 31, 1991.

      Alan R. Brunell, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and Peter Zaper, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial, defendant was convicted of armed robbery and sentenced to an extended term of 60 years’ imprisonment. (Ill. Rev. Stat. 1981, ch. 38, pars. 18-2, 1005-5-3.2(b)(l).) This court and the supreme court subsequently affirmed the judgment. (People v. Harden (1986), 113 Ill. 2d 14, 495 N.E.2d 490; People v. Harden (1985), 130 Ill. App. 3d 1158, 493 N.E.2d 755 (unpublished order under Supreme Court Rule 23).) On December 9, 1988, defendant filed a petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.). The trial court denied the petition without an evidentiary hearing. On appeal, defendant contends he was entitled to an evidentiary hearing since (1) the allegations supported his claims that he was denied due process of law and that defense counsel had rendered constitutionally deficient assistance at the sentencing hearing, (2) the extended-term sentence was illegal because he had no prior Class X felony convictions, and (3) he was denied his right to effective assistance of counsel because defense counsel did not apprise the sentencing court that a prior Federal conviction “had apparently been vacated.”

Defendant and several codefendants pleaded guilty in the United States District Court to a two-count indictment charging separate violations of the Federal bank robbery statute. (18 U.S.C. §§2113(d), 2113(e) (1988).) The Federal indictment charged that on August 16, 1973, defendant, by force and while armed with a gun, took from the persons and presence of employees of the North Community State Bank in Chicago approximately $36,611.10 in money belonging to the bank and in committing this offense put in jeopardy the lives of customers and employees of the bank. Count II charged that while committing the acts as charged in count I, which was incorporated by reference, and in avoiding and attempting apprehension, defendant forced two individuals to accompany him and an accomplice against their will and without their consent in violation of section 2113(e). The court of appeals held that consecutive sentences under separate provisions of the bank robbery statute (18 U.S.C. §2113 (1988)) were improper, vacated the sentences and remanded the cause for resentencing. (United States v. Turner (7th Cir. 1975), 518 F.2d 14.) On October 13, 1976, the district court corrected the commitment order to eliminate the reference to count I since the sentence should not have been imposed on both counts under the court of appeals’ decision. The district court’s decision recited that its action was taken on the basis of a pro se motion by defendant.

Defendant initially contends the trial court misapplied the doctrine of res judicata. Defendant says that the original trial court, this court and the supreme court were never apprised of the fact that his Federal conviction for “armed bank robbery” had been vacated. The State contends that when a defendant has taken an appeal from a judgment of conviction, the judgment of the reviewing court is res judicata as to all issues actually decided by the court and all other issues which could have been presented to the reviewing court, if not presented, are waived. People v. Stewart (1988), 123 Ill. 2d 368, 375-76, 528 N.E.2d 631.

We agree with the State that the issues now presented by defendant have been waived. It is significant that defendant did not allege he was unaware of the district court’s 1976 order regarding his Federal conviction. It is clear that defendant could have raised this issue in the direct appeal, but he did not do so. Defendant did present a related issue, that the extended-term sentence based upon his prior Federal conviction was improper. This court held that issue was waived because of defendant’s failure to object in the trial court. The supreme court concluded that we correctly held that defendant had waived any question on the propriety of the imposition of an extended term based on his Federal conviction. (People v. Harden, 113 Ill. 2d at 18, 495 N.E.2d at 492.) For post-conviction purposes, we conclude that defendant has waived this issue.

Defendant next contends that the extended-term sentence is illegal since the sole basis of the sentence was the trial court’s belief that the defendant had a Federal conviction which the court treated as a Class X felony. Defendant says that the sentence for this offense had been vacated and all reference to the charge stricken. But, it is apparent from the order of the district court that the charge had not been stricken and that defendant’s conviction under count II was valid. The supreme court rejected defendant’s contention that it was improper to impose an extended-term sentence on the basis of a Federal conviction in Illinois and said that consideration of his Federal conviction in imposing an extended-term sentence was not error. (People v. Harden, 113 Ill. 2d at 20-22, 495 N.E.2d at 493-94.) We conclude that this argument could have been presented on the direct appeal, that it was partly rejected on the direct appeal and it is without merit. Defendant’s argument that “no final judgment exists as to this charge” is directly contradicted by the record, particularly the judgment of the Federal district court.

Finally, defendant contends he was deprived of effective assistance of counsel, who failed to apprise the trial court that the prior Federal conviction “had apparently been vacated in 1976.” He says that he has established serious errors by counsel which prejudiced him so as to deprive him of a fair trial, as required by Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and People v. Albanese (1984), 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246. He says that defense counsel utterly failed to apprise the trial court that no final judgment existed as to the Federal conviction, that all reference to such offense had been stricken from his Federal commitment order and he argues that an extended-term sentence would never have been imposed if the trial court had been aware of these facts. Defendant alleged that his counsel did not discover that this conviction “was vacated,” that he admitted that he had a Federal conviction for armed bank robbery at the sentencing hearing because an entry on his “rap sheet” showing “armed bank robbery” was incomplete and did not reflect that his conviction and sentence were vacated; that the conviction was on count II (bank robbery with hostages); and, had counsel examined the Federal court file, he would have discovered defendant’s conviction for armed bank robbery was vacated and defendant was not eligible for an extended-term sentence.

The State contends that this issue is res judicata and that trial counsel’s actions could be considered a matter of trial strategy, citing People v. Bryant (1989), 128 Ill. 2d 448, 458-59, 539 N.E.2d 1221, 1226, where the court said that a criminal defendant cannot state a falsehood to his attorney and later claim that his attorney’s reliance on the falsehood resulted in ineffective assistance of counsel. To state the obvious, defendant’s conviction under 18 U.S.C. §2113(d) was vacated, but his conviction under 18 U.S.C. §2113(e) was sustained. It is misleading to say the conviction was “apparently vacated.” But it is not apparent why this issue could not have been presented on the direct appeal. Given defendant’s virtually certain knowledge of the facts surrounding the Federal conviction, we cannot say that any failure by counsel to check the Federal records of that conviction was conduct falling below an objective standard of reasonableness. (People v. Bryant, 128 Ill. 2d at 459, 539 N.E.2d at 1226.) And since defendant’s conviction under section 2113(e) was sustained, any such argument would not have succeeded. Thus, we conclude that the defendant’s claim of ineffective assistance of counsel is both barred by the doctrine of waiver and is without merit.

Therefore, the judgment of the circuit court of Cook County is affirmed. As part of our judgment, we grant the State’s request and assess defendant $50 as costs for this appeal.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.

        It has been held that section 2113(d) creates a lesser-included offense of the crime defined in section 2113(e), although the circuits disagree on this point. United States v. Whitley (4th Cir. 1985), 759 F.2d 327, 331.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTIC BROWN, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 91—0842
    Opinion filed October 31, 1991.

      Randolph N. Stone, Public Defender, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and Annette Milleville, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant filed a notice of appeal from the judgments entered on his convictions of unlawful delivery of phencyclidine (PCP) and possession of PCP with intent to deliver for which he was sentenced to concurrent terms of three years’ imprisonment. Defendant maintains that his cause must be remanded to the trial court because that court never considered his motion to vacate his guilty pleas.

The record shows that on November 2, 1989, defendant entered a plea of guilty to a charge of possession with intent to deliver 10 or less grams of a substance containing PCP (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(d)), and was sentenced to a term of 18 months’ probation. Approximately one year later defendant was indicted and charged with delivery of 10 grams or less of a substance containing PCP (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(e)), and this offense also served as the basis for a petition seeking the revocation of his probation. The record further discloses that a hearing was held on the revocation petition on February 7, 1981, where the court found defendant to be in violation of his probation as charged, and the sentencing hearing took place two weeks later.

At the commencement of that hearing reference was made to a conference concerning defendant’s total situation. Defense counsel asked defendant in the presence of the court whether he wished to accept the offer given to him and plead guilty to the underlying charge. Defendant indicated his agreement to that proposal, and at that point the court stated, “As I understand it, this is a stipulated bench trial, since I already heard the facts.” After further colloquy defense counsel announced, “Mr. Brown wants to plead guilty on the charge. This is telling the judge you don’t want a jury trial.” The trial court then asked for a jury waiver, which was tendered along with defendant’s oral assent to it.

Defense counsel then stipulated to the facts heard by the court at the violation of probation hearing, and the parties proceeded to the sentencing portion of the hearing. Both sides waived their right to a presentence investigation report, and defendant was sentenced “in accordance with the agreement reached at the conference” to concurrent terms of three years’ imprisonment with proper credit given for his prior incarceration.

After announcing sentence the court advised defendant as follows: “You have the right to appeal the sentence of this court. If you wish to appeal the sentence of this court, you must file a notice of appeal. This notice of appeal must be filed within 30 days.
If you have no money for a lawyer, one will be appointed for you. If you have no money for a copy of the transcript, a copy of the transcript will be provided to you. If I grant your motion, I’ll vacate your plea, vacate your sentence and set this matter down for trial.”

Defendant indicated his understanding of the court’s admonitions, and within 30 days he simultaneously filed a pro se motion to withdraw his guilty plea and to vacate the judgment and a notice of appeal. Both documents incorporated the judgments which had been entered in the two proceedings. The notice of appeal was processed in both cases, but no action was taken as to defendant’s motion to withdraw his guilty plea. That omission gives rise to defendant’s contention on appeal that his motion to vacate must be remanded to the trial court for consideration. The State responds that defendant’s appeal must be dismissed because there is no final appealable order before this court.

We initially dispute the State’s jurisdictional contention insofar as the record before us clearly shows that there were two proceedings which are governed by separate rules. Section 5 — 6—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 6 — 4) sets forth the procedure to be followed in revocation proceedings, and specifically provides that a judgment revoking probation is a final appealable order. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(g).) In this case defendant filed a timely notice of appeal from the sentencing order following the revocation of his probation, and this matter was properly presented to this court. However, since defendant has not raised any contention of error concerning that judgment, we must presume that the trial court’s decision was proper and affirm the judgment entered.

As to the proceeding which followed the violation of probation hearing and concluded with the concurrent sentencing hearing for both offenses, we initially observe that both parties characterized it as a change of plea hearing. We find this conclusion questionable based on the colloquy between the court and the parties reflected in the record where the court announced its understanding that the proceeding at hand was a stipulated bench trial. This would be consistent with the fact that the court made no attempt to admonish defendant in accordance with Supreme Court Rule 402 (134 Ill. 2d R. 402) as required for the acceptance of a guilty plea.

In addition, the record shows that defense counsel stipulated to the facts of the substantive offense as related at the violation of probation hearing; however, counsel then announced that defendant would plead guilty to that charge. Sentencing formalities were waived by both parties, and defendant was sentenced in accordance with the agreement reached in the conference to concurrent terms of three years’ imprisonment. After that, the court advised defendant of his appeal rights, and at the conclusion of its admonishments, also advised defendant that if the court vacated defendant’s judgment, the matter would be set for trial.

It is apparent from the record that the parties intended to dispose of the two matters in an expeditious manner, but in the proceeding which followed, portions of a stipulated bench trial and hearing on a plea of guilty were utilized. Then, after dual admonishments by the trial court, defendant filed both a motion to vacate his plea of guilty and a notice of appeal from both judgments.

As correctly noted by the State, when defendant filed his notice of appeal, the trial court was deprived of jurisdiction to enter any order involving a matter of substance on the plea and caused the jurisdiction of the appellate court to attach instanter. (Daley v. Laurie (1985), 106 Ill. 2d 33, 476 N.E.2d 419.) This premature filing of the notice of appeal effectively nullified the existence of the motion to vacate (People v. Turner (1982), 111 Ill. App. 3d 358, 443 N.E.2d 1167; People v. Gambill (1980), 91 Ill. App. 3d 302, 414 N.E.2d 859) and subjected his appeal to dismissal for lack of jurisdiction. People v. Gambill, 91 Ill. App. 3d 302, 414 N.E.2d 859; People v. Potts (1985), 136 Ill. App. 3d 1059, 484 N.E.2d 306.

After carefully examining the entire record, however, we are of the opinion that the procedure attempted was more in the nature of a stipulated bench trial. This procedure, though heavily criticized, allows the parties to proceed with the benefits of a guilty plea proceeding while avoiding the waiver hazards connected with it. (See People v. Sullivan (1979), 72 Ill. App. 3d 533, 391 N.E.2d 241.) In accordance with the recognition of its continued use, the supreme court recently adopted the uniformly applied rule that a stipulated bench trial procedure is proper and not tantamount to a guilty plea where defendant presented and preserved a defense. (People v. Horton (1991), 143 Ill. 2d 11, 570 N.E.2d 320.) However, where defendant stipulates that the evidence was sufficient to convict him of the crime charged (see People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760), and he does not present or preserve a defense, either factual or legal (see People v. Hart (1986), 144 Ill. App. 3d 103, 494 N.E.2d 226), or the hearing amounts to a mere formality (People v. Stepheny (1974), 56 Ill. 2d 237, 306 N.E.2d 872), he is entitled to the protections set forth in Supreme Court Rule 402. 134 Ill. 2d R. 402; People v. Horton, 143 Ill. 2d 11, 570 N.E.2d 320; People v. Stepheny, 56 Ill. 2d 237, 306 N.E.2d 872; People v. Smith, 59 Ill. 2d 236, 319 N.E.2d 760.

Applying these principles to the case at bar, we observe that although defense counsel properly stipulated to the evidence heard at the violation of probation hearing without conceding defendant’s guilt (see People v. Cox (1990), 197 Ill. App. 3d 239, 554 N.E.2d 360), he then informed the judge that defendant was pleading guilty to the offense. At that point, we believe that defendant was entitled to the admonishments set forth in Supreme Court Rule 402, and the failure of the court to provide them before entering judgment in the case requires that defendant’s conviction for delivery of a controlled substance be reversed and the cause remanded "with directions that defendant be provided a new trial. People v. Stepheny, 56 Ill. 2d 237, 306 N.E.2d 872.

For these reasons, we conclude that jurisdiction was proper, and we affirm the judgment of the circuit court on the violation of probation and sentence on defendant’s original conviction of possession with intent to deliver. We reverse the judgment of the circuit court regarding delivery of the controlled substance and remand the cause "with directions.

Affirmed in part; reversed in part; and cause remanded in part.

JIGANTI, P.J., and McMORROW, J., concur.


author: JUSTICE EGAN

text:
    THE CITY OF EVANSTON, Plaintiff-Appellant, v. ALVIN R. PADEN et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 90—1766
    Opinion filed November 1, 1991.

      City of Evanston Law Department, of Evanston (Herbert D. Hill, Ellen Szymanski, and Kathleen E Brenniman, of counsel), for appellant.
    Betty Burns Paden, of Evanston, for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, City of Evanston (City), appeals from an order denying its application for an administrative inspection search warrant. We judge that the order is not appealable and dismiss the appeal.

The defendants, Alvin Paden and Betty Burns Paden, own or have an interest in property at 2012 and 2018 Darrow and 1025-27 Emerson in Evanston. The City filed three complaints alleging that the defendants’ buildings contained exterior violations of the City’s housing code and that the defendants refused to grant the City the right of entry for interior inspections of the properties.

On March 7, 1990, the trial judge continued the cases to June 14, 1990, for full compliance on the exterior violations. He said that the City was not entitled to the right of entry without a search warrant. The City filed its motion for administrative inspection warrant on March 28, 1990, which was heard and denied on March 30, 1990. The judge recognized that an application for an administrative inspection search warrant was not subject to the same standards of probable cause applicable in a criminal case but that “there still has to be some probable cause.” He held that the affidavits in support of the application did not establish “some probable cause.” In substance, he held that the City was required to plead that there were interior violations at the buildings in order to establish probable cause. The City contends that the judge erred in applying the wrong standards for the issuance of the search warrant.

The case cited by both sides here and relied on by the trial judge is Camara v. Municipal Court (1967), 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727. In that case the Supreme Court denied the right of a municipality to engage in a warrantless systematic area-by-area search of buildings under its police power to determine whether the buildings were in compliance with the safety and health provisions of the municipal codes or other applicable laws. The court also held that the search warrants required of the municipalities must be based on probable cause but not the same probable cause required for search warrants issued in criminal investigations:

“[I]t is obvious that ‘probable cause’ to issue a warrant to inspect must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling. Such standards, which will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building (e.g., a multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. *** The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard.” (Emphasis added.) (387 U.S. at 538-39, 18 L. Ed. 2d at 941, 87 S. Ct. at 1735-36.)

Significantly, the court quoted with approval the dissenting opinion in Frank v. Maryland (1959), 359 U.S. 360, 3 L. Ed. 2d 877, 79 S. Ct. 804, which Camara overruled. That dissenting opinion held that the passage of a certain period without inspection might of itself be sufficient in a given situation to justify the issuance of a warrant. (Camara, 387 U.S. at 538, 18 L. Ed. 2d at 940-41, 87 S. Ct. at 1735-36.) We observe parenthetically that the buildings in issue in the case before us were last inspected in 1984.

The defendants filed a motion to “strike and dismiss” this appeal based on several grounds; we denied the motion. In their brief, the defendants again argue that the appeal be dismissed and, more specifically than before, assert that the order entered is not a final appealable order. We agree. There is no reference to the procedures governing administrative inspection search warrants in the supreme court rules or any statute. The criminal code governs the procedures to be followed in the issuance of search warrants in criminal investigations. (Ill. Rev. Stat. 1989, ch. 38, pars. 108 — 3 through 108 — 14.) Section 108A — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 108A — 10) expressly empowers the State to appeal from a denial of an application for authorization and approval for the use of an eavesdropping device. We have strong doubts of the validity of section 108A — 10, since it apparently infringes on the exclusive authority of the Supreme Court to regulate appeals by the State in criminal cases. (Cf. People v. Heim (1989), 182 Ill. App. 3d 1075, 538 N.E.2d 1259 (statute authorizing State appeal from bail order unconstitutional).) But even if we accepted the validity of section 108A— 10, it would not support the City’s position. Under the rules of statutory construction, we infer that the legislature, by the inclusion of the express right to appeal under section 108A — 10, intended to exclude the right to appeal from a denial of an application for a search warrant.

The sole and exclusive source of authority for State appeals of nonfinal orders in criminal cases lies in Supreme Court Rule 604 (134 Ill. 2d R. 604). It provides that orders quashing search warrants are appealable. It is significant that an order quashing a search warrant is not appealable in the absence of the express provision of Rule 604. If an order quashing a search warrant is not per se a final appealable order, a fortiori, an order denying an application for a search warrant is not per se a final appealable order.

The City bases its claim of appealability on Rule 304(a). (134 Ill. 2d R. 304(a).) Rule 304(a) requires multiple parties or multiple claims and a final judgment. A search warrant does not involve multiple parties or multiple claims, and it is not a final judgment. In fact, it is not a judgment at all. One cannot appeal the issuance of a search warrant until after a judgment of conviction. Even then, the issuance of a search warrant is not itself appealable; instead, it is but a basis for an appeal of the judgment of conviction. A search warrant is an authorization, nothing more. It may be executed or not as the officer who receives it deems fit. It becomes void by the mere passage of a specified time. Ill. Rev. Stat. 1989, ch. 38, par. 108 — 6.

We have invited the City to provide us with any authority upholding the appealability of an order denying an application for any type of search warrant. The City has provided us with none, and our own research has discovered none. While Camara makes a distinction between an administrative inspection search warrant and a search warrant in criminal investigations insofar as probable cause is concerned, we see no reason to make a distinction insofar as appealability is concerned.

It is our judgment that the order denying an application for a search warrant is not appealable. For that reason, the appeal is dismissed.

Appeal dismissed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


author: JUSTICE CAMPBELL

text:
    DASH MESSENGER SERVICE, INC., Plaintiff-Appellant, v. HARTFORD INSURANCE COMPANY OF ILLINOIS, Defendant-Appellee (Donald Schwartz et al., Defendants-Appellants; J.M.B. Insurance Agency et al., Defendants).
    First District (1st Division)
    Nos. 1 — 89—3084, 1—89—3085 cons.
    Opinion filed November 4, 1991.

      Hofeld & Schaffner, of Chicago (James N. Karahalios, of counsel), for appellants.
    Kiesler & Berman, of Chicago (Robert L. Kiesler and Patti M. Deuel, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Dash Messenger Service, Inc. (Dash), brought a declaratory judgment action against defendants Hartford Insurance Co. (Hartford), J.M.B. Insurance Co. and Daniel Berman to determine whether these defendants owed a defense and “Premises & Related Operations” coverage under a “special Multi-flex” insurance policy issued by Hartford. On cross-motions for summary judgment, the trial court ruled that the Hartford policy did not cover the underlying occurrence and that Hartford had no duty to defend Dash against the underlying lawsuit. Defendants Donald and Monica Schwartz (the plaintiffs in the underlying suit) and Dash now appeal. For the following reasons, we reverse and remand the proceedings to the circuit court.

The underlying complaint brought by Donald and Monica Schwartz against Dash and Dash employee Gilbert Aaron alleges that on February 17, 1987, Donald Schwartz, a physician, was crossing the intersection of Randolph and Wabash in Chicago. Aaron allegedly rode a bicycle down the street the wrong way, entered the crosswalk against the traffic light and struck Dr. Schwartz. The record indicates that Dr. Schwartz has permanent brain damage and, as of August 25, 1989, had incurred approximately $310,000 in medical costs, which were continuing to accrue at the rate of $5,000 per month.

Count I of the Schwartzes’ complaint alleges liability based on the negligent and unlawful operation of the bicycle. Count II alleges loss of consortium on the same theory as count I. Count III alleges that Dash negligently failed to adequately screen, train and supervise its employees; failed to warn the public of these other failures; and scheduled so many deliveries to its employees in the course of a day that the employees rushed to complete their assignments in disregard of the safety of the public, including Dr. Schwartz.

Hartford filed an appearance on Dash’s behalf, pursuant to the “special Multi-flex” policy it had previously issued to Dash. The terms of this policy will be discussed as necessary later in this opinion. Later, Hartford denied coverage on the ground that the accident did not occur on Dash’s premises and obtained a court order allowing it to withdraw from the case. Dash retained new counsel and filed the complaint for declaratory judgment which is the subject of this appeal, alleging that the accident was covered by the Hartford policy and that Hartford had a duty to defend Dash in the personal injury suit. The Schwartzes were later joined as defendants in the declaratory judgment action.

Following a hearing on the parties’ cross-motions for summary judgment, the trial court ruled in favor of Hartford. The trial court held that there was no coverage under the Hartford policy and that Hartford therefore had no duty to defend Dash. The trial court also struck two paragraphs from an affidavit of Calvin Palmer, Dash’s president, on the ground that Palmer’s expectation of coverage was hearsay and conclusory, in violation of Illinois Supreme Court Rule 191 (134 Ill. 2d R. 191). Dash and the Schwartzes now appeal.

The Schwartzes and Dash first argue that the order granting summary judgment to Hartford is based upon a misinterpretation of both the policy and Illinois insurance law. Summary judgment is proper when the pleadings, depositions and admissions on file, together with any affidavits, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) In order to survive a motion for summary judgment, the nonmoving party must come forward with evidentiary material that establishes a genuine issue of fact. (Salinas v. Chicago Park District (1989), 189 Ill. App. 3d 55, 545 N.E.2d 184.) Nevertheless, because summary judgment is a drastic method of terminating litigation, the movant’s entitlement must be free from doubt; the court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34. 564 N.E.2d 778. 780.

When interpreting an insurance policy, the parties’ intent is the most significant factor. (Weeks v. Aetna Insurance Co. (1986), 150 Ill. App. 3d 90, 94-95, 501 N.E.2d 349, 352.) Intent may be ascertained from the circumstances surrounding the issuance of the policy, including the situation of the parties and the purpose for which the policy was obtained. (Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 378, 400 N.E.2d 921, 922.) All the provisions of the insurance contract, rather than an isolated part, should be read in light of each other to determine whether an ambiguity exists. See Cobbins v. General Accident Fire & Life Assurance Corp. (1972), 53 Ill. 2d 285, 290 N.E.2d 873.

Because the interpretation of insurance contracts is governed by the rules for interpreting contracts generally (e.g., Consolidated Rail Corp. v. Liberty Mutual Insurance Co. (1981), 92 Ill. App. 3d 1066, 416 N.E.2d 758), whether a policy is ambiguous is a question of law for the court to decide (see Kukla Press, Inc. v. Family Media, Inc. (1985), 133 Ill. App. 3d 939, 943, 479 N.E.2d 1116, 1119), but if the court decides it is ambiguous, the construction of the contract becomes a question of fact. (See Quake Construction, Inc. v. American Airlines, Inc. (1989), 181 Ill. App. 3d 908, 913, 537 N.E.2d 863, 866, ajf’d (1990), 141 Ill. 2d 281, 565 N.E.2d 990.) A court should consider the plain meaning of the policy language and should not search for a nonexistent ambiguity. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 5, 429 N.E.2d 1203, 1205.) Nevertheless, even in doubtful cases, courts should be quick to construe the policy in favor of coverage so that the insured is not deprived of a benefit for which the insured paid. (Bellmer v. Charter Security Life Insurance Co. (1986), 140 Ill. App. 3d 752, 755, 488 N.E.2d 1338, 1340.) In turn, when a complaint sets forth allegations potentially within the policy coverage, the insurer must defend the action. E.g., Thornton v. Paul (1978), 74 Ill. 2d 132,144, 384 N.E.2d 335, 339.

In this case, the record indicates that the trial court considered itself bound by Schnackenberg, in which an insurance company sought a declaratory judgment against its insureds, Barbara Schnackenberg and her son Mark, and the plaintiff in the underlying suit, Maria Strehlow. The underlying complaint alleged that Strehlow was injured by a bicycle ridden by Mark Schnackenberg as she was crossing the street at an intersection approximately 21k blocks from the Schnackenberg home. The homeowner’s policy covering the two-family dwelling stated:

“ ‘The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. bodily injury or
B. property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto ***.’
* * *
<***
“insured premises” means the premises described below (2444 N. Orchard, Chicago, Illinois) or designated in the policy as subject to this endorsement, including the ways immediately adjoining ***.’ ” Schnackenberg, 88 Ill. 2d at 3-4, 429 N.E.2d at 1204.

The supreme court held that there was no coverage, due to the unambiguous meaning of “the ways immediately adjoining” the “insured premises” in the policy. (Schnackenberg, 88 Ill. 2d at 8, 429 N.E.2d at 1206-07.) The court then stated that bicycle riding was only incidental to the use of the premises until the bicycle left the premises; otherwise, there would be no geographic limit to the coverage. The insurer did not need to use other limiting policy language because the Schnackenbergs’ interpretation could not reasonably have been contemplated by the parties when they entered into the contract of insurance. Schnackenberg, 88 Ill. 2d at 8, 429 N.E.2d at 1207.

In this case, the “Premises and Related Operations in Progress” portion of the Hartford policy contained a coverage provision virtually identical to the policy language in Schnackenberg, except for the location of the “insured premises.” The record indicates that the accident in this case did not occur on Dash’s insured premises, which are on the second floor of an office building on Roosevelt Road. The record also shows that the two-room office suite is used to take orders and dispatch the messengers, who pick up and deliver packages out on location.

Hartford relies primarily on the decisions of our supreme court in Schnackenberg and Cobbins. It does not follow as a matter of law, however, that there is no coverage simply because the Hartford coverage provision is virtually identical to the clause in Schnackenberg and similar to that in Cobbins. Both Schnackenberg and Cobbins state that we may not focus exclusively on one provision in a policy when reading a policy in its entirety renders the policy ambiguous. (Schnackenberg, 88 Ill. 2d at 5, 429 N.E.2d at 1205.) Applying the rules of policy construction discussed above, we conclude that the record in this case precludes the entry of summary judgment.

The circumstances surrounding the issuance of the policy, the situation of the parties and the purpose of the policy in Schnackenberg are far removed from those presented in this appeal. Schnackenberg involved a homeowner’s policy issued to a family; this appeal involves “Premises & Related Operations in Progress” coverage issued to a corporation operating a messenger service. The risks which are “reasonably contemplated by the parties” (as the Schnackenberg court put it) upon entering into a policy in the latter situation may not be the same as in the former situation. See also Safeco Insurance Co. v. Brimie (1987), 163 Ill. App. 3d 200, 516 N.E.2d 577 (denying coverage due to exclusion in homeowner’s policy).

Schnackenberg was concerned primarily with the definition of “the ways immediately adjoining” as part of the definition of “insured premises” (Schnackenberg, 88 Ill. 2d at 5-8, 429 N.E.2d at 1205-06) and secondarily with defining bicycle riding as incidental to use of the premises only while the bicycle remained there (Schnackenberg, 88 Ill. 2d at 8, 429 N.E.2d at 1207). Other portions of the coverage provision in Schnackenberg were not addressed by our supreme court, apparently because they had not been raised there.

For example, both the Schnackenberg and Hartford policies provide coverage for incidents caused by an occurrence and “arising out of” the ownership, maintenance, and use of the insured premises. This court has repeatedly held that the phrase “ ‘arising out of’ is both broad and vague, and must be liberally construed in favor of the insured.” (Maryland, Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 154, 466 N.E.2d 1091, 1094.) “But for” causation satisfies this language. Consolidated Rail Corp., 92 Ill. App. 3d at 1069, 416 N.E.2d at 761. But see Heritage Insurance Co. v. Búcaro (1981), 101 Ill. App. 3d 919, 923, 428 N.E.2d 979, 982.

The vagueness of this phrase has resulted in the extension of coverage to railroad employees injured away from premises leased by a subsidiary of a railroad company (Consolidated Rail Corp., 92 Ill. App. 3d at 1069, 416 N.E.2d at 762); an injured employee of an insured who was assaulted in a stairwell away from leased newsstand premises within a railway terminal (Maryland Casualty Co., 126 Ill. App. 3d at 154-55, 466 N.E.2d at 1095); a minor for injuries received in an automobile owned by a day care center off its premises (United States Fidelity & Guaranty Co. v. State Farm Mutual Automobile Insurance Co. (1982), 107 Ill. App. 3d 190, 437 N.E.2d 663); and the estate of a passenger attempting to board a commuter train from an area excluded from the leased railroad premises (Burlington Northern R.R. Co. v. Illinois Emcaseo Insurance Co. (1987), 158 Ill. App. 3d 783, 787-89, 511 N.E.2d 776, 778-79). Given these cases, which both predate and antedate Schnackenberg, we cannot say as a matter of law that there is no coverage of the occurrence at issue in the underlying complaint.

Hartford responds that the US F & G and Burlington Northern policies covered occurrences arising out of the insured’s business as well as those arising out of the use of the leased premises. (United States Fidelity & Guaranty Co., 107 Ill. App. 3d at 191, 437 N.E.2d at 664-65; Burlington Northern R.R. Co., 158 Ill. App. 3d at 787, 511 N.E.2d at 778.) Hartford also notes that one appellate decision refused to read a policy covering the former as covering the latter. (Bucaro, 101 Ill. App. 3d at 923, 428 N.E.2d at 982.) However, the Maryland Casualty Co. and Consolidated Rail Cory, courts affirmed declarations of coverage where the policy referred only to premises. See Maryland Casualty Co., 126 Ill. App. 3d at 153, 466 N.E.2d at 1093; Consolidated Rail Corp., 92 Ill. App. 3d at 1068, 416 N.E.2d at 761.

In Cobbins, the other supreme court decision upon which Hartford relies, the issue was whether a negligent sale of fireworks which later injured a person off premises fell within premises liability coverage purchased by the merchant or within unpurchased completed operations coverage. (See Cobbins, 53 Ill. 2d at 289, 290 N.E.2d at 876.) The supreme court held that the sale was a completed operation expressly excluded from the insured’s policy. (Cobbins, 53 Ill. 2d at 291, 290 N.E.2d at 877.) The Hartford policy has a similar exclusion, and Dash did not purchase completed operations coverage, but the record does not establish whether the occurrence was part of a completed or uncompleted operation. Thus, Cobbins does not control this appeal.

In addition, the determination of whether an off-premises occurrence falls within the coverage of a “Premises & Related Operations” policy requires that the coverage definitions and specific exclusions be read together. (Cobbins, 53 Ill. 2d at 290, 290 N.E.2d at 876-77.) The record on appeal indicates that the “Persons Insured” section of the Hartford policy first applied to officers of Dash, but was broadened by an endorsement including as an insured “any employee of the named insured while acting within the scope of his duties as such” (emphasis omitted). The Maryland Casualty Co. and Consolidated Rail Corp. courts, relying on the “Persons Insured” by a policy, as well as the “arising out of” language within those provisions, held that there was policy coverage. See Maryland Casualty Co., 126 Ill. App. 3d at 153, 466 N.E.2d at 1093; Consolidated Rail Corp., 92 Ill. App. 3d at 1068, 416 N.E.2d at 761.

Hartford concedes in its brief that Dash’s employees are insureds, but contends that the event also must fall within the scope of the policy coverage. (See Manchester Insurance & Indemnity Co. v. Universal Underwriters Insurance Co. (1972), 5 Ill. App. 3d 847, 852, 285 N.E.2d 185, 187.) The essence of Hartford’s position in this case is that under the policy it issued, Dash employees would only be insured while acting within the scope of their duties while in the office suite or the ways immediately adjoining it. However, the record shows that Hartford knew or should have known from its own policy declarations that it was insuring a messenger service. The ordinary definition of a messenger includes a “person employed to carry telegrams, letters, or parcels.” (American Heritage Dictionary 789 (2d College ed. 1982).) The ordinary definition of “carry” is “[t]o bear or convey from one place to another; transport.” (American Heritage Dictionary 243 (2d College ed. 1982).) Thus, the very definition of a messenger implies that Dash was paying to add persons who spend most, perhaps all, of their time off premises in performing their duties. See also, e.g., Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131, 379 N.E.2d 290 (employees of “messenger service” ran bets to racing track and did not remain at the office).

In Illinois, as in many other jurisdictions, if an insurer does not intend to insure against a risk likely to be inherent in the insured’s business, the insurer should expressly exclude that risk from the coverage of the policy. (See, e.g., Canadian Radium & Uranium Corp. v. Indemnity Insurance Co. of North America (1952), 411 Ill. 325, 334-35, 104 N.E.2d 250, 255; Triple-X Chemical Laboratories v. Great American Insurance Co. (1977), 54 Ill. App. 3d 676, 679, 370 N.E.2d 70, 72; Bremen State Bank v. Hartford Accident & Indemnity Co. (7th Cir. 1970), 427 F.2d 425, 427 (applying Illinois law).) An off-premises bicycle accident is a normal and customary risk likely to be inherent in a messenger business. The name of the applicant and the description of the business in the application should have put Hartford on notice of this risk. Moreover, as in Triple-X, the slightest inquiry would have put the insurer on notice that the business was conducted almost exclusively off the premises. (Triple-X, 54 Ill. App. 3d at 679-80, 370 N.E.2d at 72-73.) Hartford has failed to point to anything in the record indicating that it notified Dash, J.M.B. or Daniel Berman prior to the occurrence that this risk was not covered by their policy, let alone that it excluded this risk in the policy itself.

The Hartford policy not only fails to expressly exclude this inherent risk, but also contains exclusions which could lead a reasonable purchaser to conclude that the risk was covered. Such exclusions “are an integral part of the policy which must be considered in determining the scope of coverage.” (See Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 494, 475 N.E.2d 872, 876.) We therefore note a few of the Hartford policy exclusions which are germane to this dispute. Exclusion (q) states that the policy does not apply:

“to bodily injury *** arising out of operations on or from premises (other than the insured premises) owned by, rented to or controlled by the named insured, or to liability assumed by the insured under any contract or agreement relating to such premises.” (Emphasis changed.)

A reasonable purchaser might infer from exclusion (q) that the phrase “arising out of the *** use of the insured premises and all operations necessary or incidental thereto” applies to operations from the insured premises. It is undisputed in this case that Dash dispatches its employees from the insured premises. Thus, whether the policy language may induce a reasonable purchaser to believe that the occurrence at issue would be covered is a material issue of fact.

The record also shows that exclusions (b), (c) and (e) exclude coverage of bodily injury in many vehicle-related contexts. Exclusion (e) excludes watercraft-related occurrences except those arising when the craft is on shore of the premises. A reasonable person might infer from exclusion (e) that the off-premises operation of watercraft incidental to the use of the insured premises was covered, or else it would not be necessary to exclude such operations with an exception where watercraft are ashore on the insured premises. Exclusion (b) similarly excludes automobile-related occurrences except those occurring on the premises. Exclusion (c) excludes occurrences involving “mobile equipment” (including bicycles) in contexts such as racing or demolition contests. A reasonable person might infer from the existence of these exclusions that other bicycle-related occurrences fall within the policy coverage. An amendment to part (2) of exclusion (c), excluding coverage of bodily injury caused by the operation of a snowmobile by any person in the course of Dash’s employment, may suggest that the parties thought that such off-premises occurrences were covered after the employees were added as “persons insured.” We cannot conclude as a matter of law that a reasonable person would seek (or that an insurance company would extend) coverage for a snowmobiling accident only within the confines of a two-room suite on the second floor of an office building and the ways immediately adjoining it.

The policy further states that it “applies only to bodily injury which occurs within the policy territory,” which is defined, in relevant part as:

“1. The United States of America, its territories or possessions, or Canada;
2. international waters or air space, provided [it] does not occur in the course of travel or transportation to or from any other country, state or nation ***.”

A reasonable purchaser might infer from these terms that if the policy coverage were limited solely to occurrences on the insured premises, these terms would be superfluous. These terms also suggest that the fear of unlimited geographic liability enunciated in Schnackenberg is not present here, as the policy expressly limits the geographic boundaries of coverage.

In sum, construing the Hartford policy as a whole, we conclude that the ambiguity of the policy under the facts and circumstances of this case raises a material issue of fact concerning the parties’ intent and precludes the entry of summary judgment.

The Schwartzes and Dash also argue that the trial court erred in striking two paragraphs from the affidavit of Calvin Palmer, Dash’s president. Illinois Supreme Court Rule 191 (134 Ill. 2d R. 191) permits a court to strike portions of an affidavit containing mere conclusions of law or fact, as well as statements that would be inadmissible or to which the affiant could not competently testify in court. (See, e.g., Murphy v. Urso (1981), 88 Ill. 2d 444, 462-63, 430 N.E.2d 1079, 1088.) However, given that the reversal of summary judgment in this case does not depend on matters which appear solely in the paragraphs at issue, it is unnecessary to determine whether the trial court’s rulings in this regard were in error.

For all of the aforementioned reasons, we reverse the entry of summary judgment and remand the cause for proceedings consistent with this opinion.

Reversed and remanded.

MANNING, P.J., and O’CONNOR, J„ concur.

      J.M.B Insurance Co. and Daniel Berman are not parties to this appeal, and the claims regarding them are not before this court.


author: PRESIDING JUSTICE JIGANTI

text:
    BRUCE E. MITCHELL et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    Nos. 1 — 90—1210, 1—90—1253 cons.
    Opinion filed November 7, 1991.

      Hayes & Power, of Chicago (Joseph A. Power, Jr., Thomas G. Siracusa, David A. Novoselsky, and Linda A. Bryceland, of counsel), for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    William Farley and P. Scott Neville, Jr., both of Chicago, for appellee Chicago Transit Authority.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

These consolidated appeals stem from a negligence action brought by the plaintiffs, Bruce E. Mitchell and his wife, Mary J. Mitchell, against the defendants, the Chicago Transit Authority (CTA) and the City of Chicago (City). On motions by the CTA and the City, the trial court granted summary judgments in favor of both of the defendants and against the plaintiffs on the grounds that no duty was owed to the plaintiffs. The plaintiffs have appealed, contending that a duty existed under the facts of this case.

On December 1, 1983, plaintiff Bruce Mitchell boarded a CTA bus, paid his fare and purchased a transfer which entitled him to transfer from the bus to a CTA train. The bus stopped at a designated bus stop located on Fullerton Avenue approximately 100 feet east of the nearest intersection at Sheffield Avenue. The bus stop was located underneath the CTA elevated train tracks and directly across from the Fullerton Avenue elevated station. There was no marked crosswalk between the bus stop and the entrance to the El station. Mitchell exited through the front door of the bus and proceeded to cross the street midblock in front of the bus, checking for traffic. As Mitchell and the other passengers from the bus crossed the street, Mitchell was struck by a car driven by Hernandez Cacok.

The plaintiffs filed an amended complaint alleging negligence against the CTA, the City and Hernandez Cacok. With respect to the CTA, the plaintiffs alleged that at the time of the occurrence, Mitchell was a CTA passenger and was accordingly owed the highest degree of care. The complaint alleged that the CTA breached its duty in several respects, including: failing to warn the plaintiff against crossing in the middle of the street; failing to discharge the plaintiff in a reasonably safe location with respect to the use of the CTA facilities; failing to provide a reasonable manner or method for passengers to transfer from its westbound bus to its El train at that location; failing to provide a reasonably safe pedestrian crosswalk at the bus stop; failing to warn motorists of pedestrians crossing the street at that point; and establishing a bus stop in an unsafe location. With respect to the City, the complaint alleged a duty to establish pedestrian crosswalks where it knew or reasonably should have known that people crossed the street as well as a duty to warn motorists of pedestrians crossing in that area. The complaint stated that the City breached its duty by failing to warn the plaintiff of the danger of crossing the street in midblock; failing to warn motorists of pedestrians crossing at that point; failing to provide a reasonably safe method for pedestrians to cross the street at the designated bus stop; failing to provide a crosswalk; and establishing a bus stop in an area where it knew or should have known that pedestrians would cross in the middle of the block.

After the trial court denied motions to dismiss by both defendants, the defendants filed motions for summary judgment based in part on the grounds that they owed no duty to plaintiff Bruce Mitchell. In their response to the CTA’s summary judgment motion, the plaintiffs submitted the affidavit of an engineering expert in the field of traffic safety. The expert attested that he observed the scene of the occurrence and concluded that it was customary for persons transferring from the bus to the El train to cross the street in the middle of the block. He further concluded that the CTA would know that this was occurring. In the expert’s opinion, the CTA created an unreasonably dangerous condition by placing a bus stop at that location without providing warning signs or safeguards such as a crosswalk. Separate hearings were held on the defendants’ motions for summary judgment. On December 16, 1988, the trial court granted summary judgment in favor of the CTA and against the plaintiffs. On April 5, 1990, the trial court entered summary judgment in favor of the City and against the plaintiffs. The plaintiffs have appealed, contending that both the CTA and the City owed a duty to plaintiff Bruce Mitchell.

A duty requires a person to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm. (Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369, 373, 562 N.E.2d 967.) Factors that a court considers in determining the existence of a duty are the foreseeability of the injury; the likelihood of injury; the magnitude of the burden of guarding against the injury; and the consequences of placing that burden upon the defendant. (Lamkin v. Towner (1990), 138 Ill. 2d 510, 522, 563 N.E.2d 449.) Foreseeability alone is not an adequate foundation upon which to base the existence of a legal duty. (Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369, 562 N.E.2d 967.) The determination of whether a duty exists is a matter of law to be made by the trial court (Trucco v. Chicago Tribune Co. (1991), 219 Ill. App. 3d 496 and is subject to de novo review on appeal. Poelker v. Macon Community Unit School District No. 5 (1990), 212 Ill. App. 3d 312, 317-18, 571 N.E.2d 479.

The plaintiffs make two arguments with respect to the CTA. First, they argue that because Bruce Mitchell had purchased a transfer and was proceeding directly to the El station to continue his journey when he was injured, he was still a passenger to whom the CTA owed the highest duty of care. Second, the plaintiffs argue that the CTA created a dangerous condition by placing the bus stop directly across from the El station rather than at a marked crosswalk and thereby assumed a duty to protect persons who crossed in midblock between the bus stop and the El station.

The disposition of the plaintiffs’ first argument is controlled by the Illinois Supreme Court decision in Rotheli v. Chicago Transit Authority (1955), 7 Ill. 2d 172, 130 N.E.2d 172. Rotheli addressed the CTA’s duty toward persons injured while transferring between CTA conveyances. According to Rotheli, the relationship of carrier and passenger “extends to passengers who are given a transfer for continuous passage upon another conveyance of the carrier. Nevertheless, when the carrier discharges the passenger at an intermediate point or at the end of the journey, be it in a public place or otherwise, the duty to exercise the highest degree of care is suspended and *** is resumed when the passenger presents himself to the conveyance of the carrier within the time and at the place fixed by the contract.” (Rotheli, 7 Ill. 2d at 177-78, 130 N.E.2d at 175.) Thus, at the time Mitchell was injured, the passenger-carrier relationship was suspended and the CTA owed Mitchell only a duty to exercise ordinary care. Based on the facts before us, we cannot conclude that the CTA breached its duty of ordinary care. Mitchell was safely discharged at a designated bus stop. The CTA has no duty to protect its passengers from obvious street dangers. (Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 545 N.E.2d 961; Kiesel v. Chicago Transit Authority (1955), 6 Ill. App. 2d 13, 126 N.E.2d 170.) Furthermore, contrary to the plaintiffs’ argument, the Local Governmental and Governmental Employees Tort Immunity Act provides that a local public entity such as the CTA is not liable for injuries caused by its failure to initially provide “regulatory traffic control devices, stop signs, yield right-of-way signs, speed restriction signs, distinctive roadway markings or any other traffic regulating or warning sign, device or marking, signs, overhead lights, traffic separating or restraining devices or barriers.” Ill. Rev. Stat. 1989, ch. 85, par. 3 — 104.

The plaintiffs’ second argument against the CTA must also fail. Essentially, the plaintiffs maintain that the CTA chose an unsafe location for its bus stop. The responsibility for designating bus stops, however, rests with the City rather than the CTA. (Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 1095, 545 N.E.2d 961.) This court in Crutchfield specifically rejected the argument that the CTA should be held responsible for the placement of bus stops because the CTA recommends bus stop locations to the City. Although the plaintiffs assert that the Crutchfield decision is in error, they have not provided us with any reasoned legal argument to support that assertion. For the foregoing reasons, we conclude that the trial court properly granted summary judgment in favor of the CTA and against the plaintiffs.

With respect to the City, the plaintiffs argue that by establishing a bus stop in midblock directly across from the entrance to the El station, the City induced pedestrians to cross the street at that point and thereby assumed a duty to protect them against the unreasonably dangerous condition the City created. Essentially, the plaintiffs’ position is that the City had a duty to refrain from placing the bus stop directly across the street from the El station because it was foreseeable that persons disembarking from CTA buses would cross the street in a location where it was unsafe to do so.

This court recently acknowledged that “[pjedestrians most often observe a cardinal geometric principle: the shortest distance between two points is a straight line. Hence, they often take shortcuts from the areas provided for pedestrian travel.” (Trucco v. Chicago Tribune Co. (1991), 219 Ill. App. 3d 496, 501.) As stated earlier, however, foreseeability alone does not create the existence of a legal duty. In Crutchfield v. Yellow Cab Co. (1989), 189 Ill. App. 3d 1091, 545 N.E.2d 961, this court considered a situation which we deem factually indistinguishable from the one before us. There, the plaintiff’s decedent was discharged at a bus stop directly across the street from a school. There was no intersecting street or pedestrian crosswalk at the bus stop. The plaintiff’s decedent walked around the front of the bus and was struck by two vehicles as she attempted to cross the street to reach the school. The plaintiff argued that the placement of the bus stop constituted negligence because it was foreseeable that persons disembarking from the bus would cross the street at a point where it was unsafe to do so.

The court in Crutchfield, relying upon the applicable provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 3 — 102(a), 3 — 103, 3 — 104), held that because the plaintiff’s decedent was crossing the street at a point intended to be used by vehicular, not pedestrian, traffic, she was not an intended and permitted user and was therefore outside the scope of any duty owed by the City. Following the reasoning expressed in Crutchfield, the City owed no duty to plaintiff Bruce Mitchell, who crossed the street at a point outside of the marked pedestrian crosswalk. For the foregoing reasons, we conclude that the trial court properly granted summary judgment in favor of the City and against the plaintiffs.

Accordingly, the judgments of the circuit court are affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.

      The counts against Cacok are not a part of this appeal.