author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD BEACHAM, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—1628
    Opinion filed September 28, 1989.

      Martin Carlson, of State Appellate Defender’s Office, and Jenner & Block, both of Chicago (Richard T. Franch and Lisa I. Fair, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

A jury found defendant, Reginald Beacham, guilty of murder and attempted murder arising out of a shooting incident in a lounge in May 1986. He was sentenced to prison terms of 30 years for the attempted murder and 40 years for murder.

On appeal he raises a number of trial errors, primarily involving the manner in which the jury was instructed. He also contends that a member of the jury should have been excused for cause and that he had the right to be present during the exercise of peremptory challenges. Finally, he argues that evidence of his prior conviction for armed robbery was more prejudicial than probative and should have been excluded.

We affirm.

Background

On May 11, 1986, at a Mother’s Day party in Huskies’ Lounge in Chicago, Beacham shot and killed Will James and shot and crippled Frank James. A jury found Beacham guilty of murder and attempted murder.

The State presented six eyewitnesses, including one of the victims, Frank James. According to the testimony, Beacham had come to the lounge and tried to enter without paying the dollar cover charge required of male customers. The tavern’s owner, Issac James, heard Beacham cursing and arguing with Clarence Ballard, who was collecting the cover charge at the door. Issac came out from behind the bar to the vestibule and told Beacham not to curse because a Mother’s Day party was in progress. At the time, Issac’s brother, Frank, was on the telephone ordering more food from the caterer. Beacham saw Will James standing by the bar with his hands in his pockets and demanded to know what he was doing. Beacham then noticed that Frank James was on the telephone and said, “God damn it, you calling the police.” He pulled a gun and shot Frank through the neck.

As Frank fell to the floor, Will James told Issac to hold Beacham. Issac grabbed Beacham, whose gun hand remained free, and when Will went to help Issac, Beacham shot and killed Will James. Beacham broke loose from Issac and fled, dropping his gun. Nine days later, he was arrested. He initially claimed that it was his brother who had committed the shootings.

Beacham’s version of the event differed from what the State’s witnesses related. He was the only one to testify for the defense. According to him, he and a friend had gone to Huskies’ lounge. When he arrived, Clarence Ballard shoved him on the shoulder, telling him he had to pay to get in. Ballard apologized for shoving him. Then Issac James came up and told him to pay the dollar or leave. Beacham said he would rather leave and backed up toward the outer door.

According to Beacham, at this point someone came up with a gun and said, “He told you to leave, nigger.” Beacham grabbed the gun and struggled with the unknown person. A shot went off and the gun fell. Next, Beacham testified, he picked up the gun and backed up to the door. A second unknown person came at him with a knife. Beacham tried to deflect the knife hand of the other person, but Beacham was pushed against the door and the gun went off again.

Beacham further testified that he again struggled with people in the vestibule but was able to escape. He went to a friend’s house, changed out of the red jogging suit he was wearing, and left it there. He said that when he left the tavern he did not know that anyone had been shot. He denied that he had intended to shoot anyone.

On cross-examination, the State offered' in impeachment of Beacham the fact that he had been convicted of armed robbery approximately nine years earlier.

Beacham offered into evidence a certified copy of a 1984 felony unlawful use of weapons conviction of Will James, the man who had been killed at the tavern. He also produced his red jogging suit into evidence to support his contention that he did not have a gun when he entered the lounge because the pockets were not large enough to hold a gun.

The jury found Beacham guilty of all charges, and the court sentenced him to consecutive prison terms of 30 years for attempted murder and 40 years for murder. At the sentencing hearing it was revealed that Beacham had at least 15 prior convictions, five of which were for felonies, including armed robbery and intimidation.

Opinion

I

Beacham initially challenges the instructions that were given to the jury. Specifically, he challenges the instructions that set out the State’s burden of proof on the manslaughter issue and the instructions that proscribe the use of force by a fleeing felon.

A

He argues that the murder and voluntary manslaughter instructions were fatally deficient in light of the Illinois Supreme Court’s decision in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. In Reddick the court held that the Illinois Pattern Jury Instructions (IPI) on point contained grave error because they misstated the State’s burden of proof in a murder prosecution. In essence, these instructions require the State to prove the defendant’s mitigating mental state necessary to reduce a murder count to voluntary manslaughter under the Criminal Code of 1961, sections 9 — 2(a) (provocation) and 9 — 2(b) (unreasonable belief of self-defense). (Ill. Rev. Stat. 1985, ch. 38, pars. 9 — 2(a), (b).) It is not the State, however, who is interested in proving mitigation; clearly, it is the defendant who introduces such evidence. The State is then required to disprove the mitigating mental state beyond a reasonable doubt. The Illinois Supreme Court in Reddick concluded that the challenged IPI are misleading because they fail to properly articulate this burden of proof. See also People v. Brooks (1988), 175 Ill. App. 3d 136, 529 N.E.2d 732; People v. Benabe (1989), 180 Ill. App. 3d 235, 535 N.E.2d 949.

In the pending case, however, we do not find that Reddick requires reversal of either of Beacham’s convictions.

ATTEMPTED MURDER OF FRANK .TAMES

The attempted murder charge is unaffected by any Reddick error because attempted murder requires proof of a different mental state from murder or manslaughter. The Illinois Supreme Court has held that there is no such crime as attempted voluntary manslaughter. (People v. Reagan (1983), 99 Ill. 2d 238, 457 N.E.2d 1260.) In Reagan the court noted that a defendant who intends to kill another while acting under an unreasonable belief that his use of force is justified does not have the requisite mental state to commit a crime. Therefore, one charged with attempted murder would be acquitted of that crime, presumably, if the jury believed that the defendant’s intent to kill was motivated by his belief that he was defending himself. It follows that the murder/voluntary manslaughter instructions that were discredited in Reddick would not, and should not, be given in an attempted murder prosecution. See People v. Powell (1989), 180 Ill. App. 3d 315, 535 N.E.2d 1008.

In the pending case the jury found that when Beacham shot Frank James in the neck, he had the specific intent to kill him, without legal justification. If the jury had believed his uncorroborated testimony that the shootings were accidental, or even that he was operating under an unreasonable belief of justification, they would have been compelled to acquit him of attempted murder. (People v. Reagan (1983), 99 Ill. 2d 238, 241, 457 N.E.2d 1260; cf. People v. Powell (1989), 180 Ill. App. 3d 315, 328, 535 N.E.2d 1008.) Instead, they found that he specifically intended to kill Frank and did not hold even an unreasonable belief of justification. The jury also found Beacham guilty of aggravated battery.

MURDER OF WILL JAMES

As for the pattern instructions on murder and voluntary manslaughter given in this case with respect to Will James’ death, we concede that they have been deemed erroneous by the supreme court in Reddick. Nevertheless, we adhere to the reasoning set forth in People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531, which holds that a murder conviction need not be reversed despite the existence of the discredited instructions if the error can be deemed harmless beyond a reasonable doubt.

In People v. Carter, as in the pending case, the defendant’s own testimony was the only evidence in the record to support his assertion that he acted in self-defense or with an unreasonable belief that he acted in self-defense. The defendant had four times stabbed his wife, a much smaller person, during an argument. He claimed at trial that he did so in self-defense, after taking the knife from her. We concluded that “any error caused by the giving of the now discredited pattern instructions was harmless beyond a reasonable doubt on this record.” 177 Ill. App. 3d at 600, 532 N.E.2d at 536.

In People v. Skipper (1988), 177 Ill. App. 3d 684, 533 N.E.2d 44 (supplemental opinion (1989), 177 Ill. App. 3d 688, 533 N.E.2d 46), the court expressly followed Carter and upheld a conviction despite the existence of a Reddick error. The court quoted from a supreme court decision which stated that an erroneous instruction is harmless if the result of the trial would not have differed had the proper instruction been given. People v. Fierer (1988), 124 Ill. 2d 176, 187, 529 N.E.2d 972, 976. See also People v. Bolden (1989), 181 Ill. App. 3d 481, 536 N.E.2d 1308 (post-conviction petition denied despite contention that Reddick error was of constitutional magnitude) (declining to follow opposing reasoning of People v. Brooks and People v. Flowers).

We find the pending case to be similar to Carter in that the evidence of Beacham’s supposed belief in self-defense is utterly contradicted by all other witnesses who were present and by the inherent weakness of his own testimony. Beacham testified that both shootings were accidental; the gun simply discharged during the course of two separate struggles and happened to hit the two victims. If the jury had believed this, it would have acquitted him because he would have been found to lack criminal intent, including that required by voluntary manslaughter.

According to Beacham, someone else with a gun threatened him as he was leaving the lounge because he would not pay the dollar cover charge. He then grabbed the gun, which went off and hit Frank, the man Beacham thought was telephoning the police. The gun dropped but Beacham recovered it and again tried to leave, while another unidentified person came up with a knife and threatened him. This time, he testified, the person with the knife pushed him, while Beacham was holding the gun, and the force of that push knocked him into the wall. This caused the gun to fire again, mortally wounding Will James.

Significantly, Beacham fled from the shooting scene and changed his clothes immediately. He did not telephone the police to report the supposedly accidental shootings, and after his arrest he gave a false name, claiming that the real killer had fled to New Jersey.

The courts have held that even if a judge refuses to tender a manslaughter instruction in a murder case when requested, the error is harmless when evidence of guilt of murder is overwhelming. E.g., People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327; People v. Diekelmann (1937), 367 Ill. 372, 11 N.E.2d 420.

The above authorities indicate that the discredited instructions given on voluntary manslaughter did not cause reversible error. Furthermore, once Beacham started to leave the tavern after attempting to murder Frank, he was in fact a “fleeing felon,” who was not entitled to use force in defending himself. (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 4(a) (self-defense unavailable to one who is “attempting to commit, committing, or escaping after the commission of, a forcible felony”).) Even if someone was then threatening him with a knife, as he testified, and even if someone struggled with him as he tried to leave, that would not amount to a legal defense of voluntary manslaughter based on an unreasonable belief in self-defense.

Finally, there is no competent evidence to support a voluntary manslaughter instruction based on a sudden and intense passion resulting from intense provocation. (Ill. Rev. Stat. 1985, ch. 38, par. 9— 2(a).) Defendant’s own testimony was that the shootings were accidental, and certainly, any altercation over the dollar cover charge could not be transmuted into provocation that reduces murder to manslaughter.

We conclude that the pattern instructions that misstate the prosecution’s burden of proof for a voluntary manslaughter conviction could not be deemed to have made a difference in the outcome of this case. Accordingly, the error was harmless beyond a reasonable doubt.

B

Next, Beacham challenges the pattern instructions that set forth the law concerning justified force and the use of force by a fleeing felon. Beacham tendered the general self-defense instruction to be given to the jury, which states that use of force is justified “when and to the extent that [a person] believes that such conduct is necessary to defend himself against the imminent use of unlawful force.” (IPI Criminal No. 24 — 25.06 (2d ed. 1981) (IPI Criminal 2d).) The court also gave the State’s requested instructions, over defense objection, on the use of force by a fleeing felon. This instruction states, “A person is not justified in the use of force if he is escaping after the commission of a forcible felony.” (IPI Criminal 2d No. 24 — 25.10.) “The term ‘forcible felony’ means any felony which involves the use of or threat of physical force or violence against any individual.” IPI Criminal 2d No. 4.05.

Beacham concedes that these instructions accurately describe the law, but argues that they may have confused the jury because they do not relate the law to the facts of the pending case. He further claims that the jury therefore must have been confused into believing that the fleeing-felon instructions overrode the self-defense instruction to the point that Beacham was not justified under any circumstances in defending himself against an attack.

We find little, support for the argument that the jury instructions were confusing. The proffered defense instructions on self-defense, as well as the voluntary manslaughter defense, were for the benefit of Beacham. The State’s instruction on use of force by a fleeing felon was properly given. In any event, Beacham does not set forth alternative instructions that could have been given to alleviate any perceived confusion. Merely objecting to the submission of an instruction, without offering an alternative, does not impel the trial court to sustain the objection on grounds that an accurate statement of the law may mislead the jury. E.g., People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027.

Moreover, Beacham’s contention that the jury could have found that he committed attempted murder while acting trader the belief that self-defense was justified is incorrect under People v. Reagan, which holds that an unreasonable belief of justification is incompatible with the mental state necessary for an attempted murder conviction. Hence, once the jury determined that Beacham committed attempted murder in shooting Frank James, it necessarily follows that he lost any self-defense justification in shooting Will James. See People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327.

II

Next, Beacham challenges the jury selection process. Specifically, he states that his exclusion from a portion of the selection process violated his constitutional rights and that the court further erred in denying his motion to exclude a juror for cause.

The voir dire was conducted in open court, after which the attorneys retired to the judge’s chambers to exercise challenges. Beacham was present during the voir dire and given the opportunity to consult with counsel regarding the potential jurors, but was not present in chambers when the juror challenges were made. According to Beacham, this deprived him of a fundamental due process right to participate in the challenge of jurors because he was unaware of which jurors would be stricken for cause or peremptorily challenged by the State. Thus, he was unable to reevaluate his choices and make informed decisions. This in turn denied him effective assistance of counsel.

We find little merit in this argument because the record indicates, and Beacham admits, that he was present during the voir dire and was able to consult with his attorney before the exercise of challenges in chambers. He did not object to the procedure until after the selection process was completed. At one point Beacham was allowed to reverse his counsel’s acceptance of a panel of jurors. There is no indication that the procedure used in the pending case critically infringed upon Beacham’s constitutional rights.

In People v. Spears (1988), 169 Ill. App. 3d 470, 525 N.E.2d 877, the court upheld a procedure similar to the one used by the trial judge in the pending case, holding that peremptory challenges may be exercised outside the presence of the defendant as long as the defendant is given the opportunity to confer with counsel beforehand. We conclude that Beacham’s participation in the jury selection was not so limited as to deny him a fair trial. See also People v. DeSavieu (1983), 120 Ill. App. 3d 420, 426, 458 N.E.2d 504, 509 (trial court has the right to reasonably regulate jury selection).

As a second challenge to the jury selection process, Beacham asserts that an alternate juror — a security officer who had once been the victim of a crime — should have been dismissed for cause. Ultimately this juror was called to serve when a regular juror was excused. According to Beacham, this violated his right to have an impartial jury sit in judgment of him.

While this assertion is a serious one, we do not agree with Beacham that the juror, because she was a security guard, “must be presumed biased.” If that were the case, all security guards, despite the nature of their duties or any other facts, would automatically be excused for cause. The record contains no details about the woman’s duties, beyond the fact that she worked part time for the Pinkerton Corporation as a security officer and wore a uniform. She did not carry a weapon. She also stated that she had once been “robbed,” but no facts explain the circumstances of this incident. The woman stated that her background would not affect her ability to serve as an impartial juror.

The trial court considered the defense motion to excuse the woman for cause and denied it, seating her as the first alternate juror. We believe that the trial judge was in the better position to judge her demeanor and sincerity as to her lack of bias. Defense counsel could have requested the court to elicit more facts regarding her duties and the mugging incident. The burden of moving to strike a juror for cause is on the challenging party (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705), and we conclude that the trial court’s denial of the motion was not error.

III

As his final contention, Beacham claims that he was unduly prejudiced because the State was allowed to offer as impeachment his prior conviction for armed robbery.

We recognize that in every case in which evidence of prior crimes is allowed there is some danger that the jury will be prejudiced against the accused because of that prior crime. Nevertheless, there are circumstances in which such evidence is permitted because it is probative on an issue that is material to the case. To safeguard an accused against the use of other crimes evidence to show the accused’s propensity to commit the one for which he is on trial, the courts have developed certain guidelines. The guiding decision for the pending case is the Illinois Supreme Court’s decision in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, where the court adopted the rationale of proposed Federal Rule of Evidence 609. Under Montgomery, evidence of a prior conviction may be admitted to impeach the accused’s credibility if he testifies, provided that the conviction is not more than 10 years old; the conviction either involves dishonesty or is punishable by death or imprisonment of more than one year; and the probative value of the evidence outweighs its prejudicial nature. In exercising its discretion, the trial court may consider such factors as the nature of the crime, its similarity to the one charged, and the subsequent career of the person. See People v. Spates (1979), 77 Ill. 2d 193, 205, 395 N.E.2d 563, 569.

In the pending case, Beacham’s armed robbery conviction qualified under the first two criteria without question. As for the third, there is also little doubt that Beacham’s credibility was critical, especially since he was the sole defense witness. The jury was charged with deciding whether the State’s evidence, including that given by the six eyewitnesses, proved Beacham guilty beyond a reasonable doubt. Beacham’s defense was inconsistent with the State’s case, and therefore, the issue of his credibility was material. The trial court is accorded broad discretion in deciding whether to permit a prior conviction for impeachment. (People v. Hall (1983), 117 Ill. App. 3d 788, 453 N.E.2d 1327.) We conclude that the court’s decision was not an abuse of this discretion.

For the foregoing reasons, we affirm Beacham’s convictions and sentences.

Affirmed.

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

      The Bolden court determined that the Illinois Supreme Court in Reddick did not intend to set forth a principle of constitutional law — despite the “grave error” label given to the erroneous instructions — because it stated that its decision would have “limited application.” If the supreme court had indeed meant to give the error constitutional status, the Bolden court noted, all previous murder convictions in which the voluntary manslaughter instructions were given would be subject to post-conviction attack. The Bolden court did not believe that the supreme court intended to “delve into” the complex question of whether the giving of an imperfect instruction on an included offense violates due process. 181 Ill. App. 3d at 488, 536 N.E.2d at 1312.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMAS TORRES, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—3453
    Opinion filed September 28, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Timothy J. Deeming and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Walter Hehner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

After a bench trial in the circuit court of Cook County, defendant was convicted of delivering more than 15 grams of heroin and less than 30 grams of cocaine (Ill. Rev. Stat. 1985, ch. 56x/2, pars. 1401(a)(1), (b)(2)) and was sentenced based upon the Class X felony to a term of six years’ imprisonment. Defendant appeals, contending, as he did before, during and after the trial, that the informant utilized by the police in this case was a transactional informant who was material to his defense and that the State’s refusal to provide him with the informant’s address and the State’s failure to make a diligent effort to produce the informant should have required that the charges against him be dismissed. Defendant also contends that he was denied effective assistance of counsel because a hearing on his motion to disclose was not requested prior to trial.

We reverse and remand.

Background

Defendant was arrested at his home on January 8, 1987, and was charged by information filed February 15, 1987, with delivery of heroin and cocaine to an undercover police officer on September 9, 1986.

On March 26, 1987, defendant filed a motion requesting the State to disclose information concerning the whereabouts of the informant who had been utilized by the police in connection with the case. Defendant claimed in his motion that the informant and the informant’s girl friend had been present and participated in the transaction for which defendant was being charged and, thus, the informant was a material witness. Defendant claimed it was necessary for him to be able to interview this witness in order to prepare his defense.

A brief hearing was held in conjunction with defendant’s motion, at which time the State agreed to review its records to determine whether the informant was “transitionally involved.” The matter was continued until April 23, 1987. Although the record indicates that hearings were held on April 23, May 18, and June 8, 1987, no transcripts of the proceedings have been provided. However, defendant contends and the State does not deny that, during these hearings, the court ordered the State to produce the informant and the State agreed to provide defendant with the opportunity to interview the informant prior to trial.

On July 8, 1987, when the case was called for trial, defense counsel notified the court that the State had repeatedly refused to make the informant available to defendant as ordered by the court and that the informant was again absent from court. Stating that the information known to the informant was essential to the defense, defense counsel requested that the court dismiss the charges against defendant due to the State’s refusal to produce the informant. The court refused to grant defendant’s motion to dismiss, and the following conversation took place:

“THE COURT: I don’t have any basis legally to dismiss the indictment because they [the State] don’t bring the informant in.
MR. GRAHAM (Defense Counsel): Right, Judge.
THE COURT: So that’s no basis for, legally for dismissal, so I can’t dismiss the indictment.
MR. GRAHAM: Well, Judge-.
THE COURT: You may proceed with what they have.
MR. GRAHAM: Judge, I believe that the informant will be imperative to my defense and to the facts that will take place.
THE COURT: He’s not here, Mr. Graham, so you will have to do and they will have to do, take the risk. Might be essential to their prosecution, too. I don’t know.”

Accordingly, trial commenced, and Chicago police officer Victor Guerrieri testified that about 8:30 p.m. on September 9, 1986, he was working in an undercover capacity when he purchased certain controlled substances from defendant. Guerrieri drove his undercover vehicle to the parking lot of a grocery store located at the corner of Keeler and North Avenue. Soon after parking in this lot, defendant approached his driver-side window and knocked. Guerrieri rolled down the window and asked if he was Tomas. When defendant replied in the affirmative, Guerrieri told him to get in and defendant got into the front passenger seat of the vehicle. Once inside the vehicle they discussed the purchase of one ounce of cocaine and one ounce of heroin. Defendant quoted a price of $2,300 for these drugs. When Guerrieri agreed, defendant told him to wait. Defendant then left the vehicle, entered his blue pickup truck and drove away. A short while later defendant returned to the parking lot and pulled up alongside of Guerrieri’s car. Defendant told Guerrieri to get into the truck, which he did, and defendant then provided Guerreri with two clear plastic packages, one containing a white powder and the other containing a brown substance. Guerrieri then gave defendant the $2,300.

According to Guerrieri defendant told him that he could provide him with any quantity of drugs with just a few days’ notice. Defendant then handed him a piece of paper with a telephone number on it and told Guerrieri to call it if he wanted to make any future purchases. Both defendant and Guerrieri then left the area in their respective vehicles. Guerrieri drove to a predesignated rendezvous, where he met his partner and showed him the drugs he had purchased.

On cross-examination, Guerrieri admitted that he had never seen or spoken with defendant prior to September 9, 1986, and that the informant had made all the arrangements for the drug purchase. Guerrieri also admitted that the informant, who was known as “Chris,” was really Leon Salmon and that this informant had been present at the time of the transaction. Guerrieri denied that the informant had, in fact, exchanged the drugs for money during the transaction and claimed that the informant had been standing about 15 feet away, near a telephone at the corner of Keeler and North Avenue. He described the informant as a longtime addict who had been working with the police for nearly a year and a half. The informant was paid to set up drug purchases, and Guerrieri admitted having contact with the informant as late as June 1987.

Guerrieri claimed that he had told the informant that the State’s Attorney and judge in this matter wanted him to come to court, but that the informant refused, despite the fact that Guerrieri had interceded for the informant on various occasions when he had been arrested for various crimes and Guerrieri had been able to obtain special favors for the informant.

Guerrieri claimed that the reason defendant was not arrested until January 8, 1987, was that they intended to set up more deals. However, Guerrieri admitted that he never contacted defendant again. Furthermore, Guerrieri admitted that he did not keep the piece of paper with defendant’s telephone number on it and that he did not inventory this piece of paper.

Finally, Guerrieri admitted that he had absolutely no knowledge of the methods used by the informant to set up the drug purchase and that the informant kept no records and had “free rein” to arrange the deals.

Although there were three additional surveillance officers present at the scene, they made no reports concerning the transaction and did not testify in court. The only other witness to testify was Guerrieri’s partner, Jerry Hutch. Hutch testified that about 8:30 p.m. on September 9, 1986, he was sitting in his surveillance vehicle located at the northeast corner of Keeler when he observed defendant approach Guerrieri’s car, get into the passenger side, and then exit the car and get into a blue pickup truck. He stated that defendant left the area and then returned shortly thereafter, at which time Guerrieri got into the truck. Soon after both defendant and Guerrieri left the scene in their respective vehicles. He then met with Guerrieri at a predesignated location, where he observed the two packages of controlled substances that Guerrieri had purchased.

On cross-examination Hutch admitted that he could neither hear nor see the actual transaction from his position. He also admitted that there were several people, both male and female, in the grocery store parking lot at the time of the transaction and that an individual who he believed was working with his partner may have been present and standing near a telephone booth. However, he claimed that he did not know the informant or the informant’s name and indicated that “we don’t disclose the people we work with.”

After a stipulation was entered that the two plastic bags submitted to the forensic chemist by Guerrieri contained 29.93 grams of cocaine and 20.51 grams of heroin, the State rested and defendant renewed his motion to dismiss. The trial court denied the motion and further held that the informant was “not a transactional informant under the definitions of that term in the cases that bear on the informant’s privilege.” However, the court granted defendant a continuance so that he could attempt to locate the informant.

On September 21, 1987, trial resumed. Since the informant could not be found, defendant was the only witness to testify for the defense. Defendant testified that on September 9, 1986, he received a telephone call from a man known to him as Leon. Defendant had known Leon for only about six months and had met him at a bar. Leon called defendant to ask him for a ride, and defendant agreed to give Leon a ride after he went to the grocery store. About 8:30 p.m., defendant proceeded to the grocery store, and as he left the store, he noticed Leon and Leon’s girl friend in the parking lot talking with a man who was identified as Guerrieri. Leon then got into defendant’s truck and they left the area. Defendant first brought the food he had purchased to his home and then drove Leon to Lincoln and Belmont. Leon left the truck and defendant drove around the block while he waited for Leon to return. Leon then get back into the truck, and defendant drove him back to the grocery store parking lot at Keeler and North Avenue, where Leon got into Guerrieri’s car with his girl friend. Defendant denied delivering any controlled substances to Guerrieri or receiving any money from him. Defendant denied ever even speaking with Guerrieri.

After defendant testified the defense rested and argued, once again, that the informant was a material witness and that the State’s refusal to produce the informant, who in all probability was still in the control of the State due to his long-standing relationship with the police department, should be the basis for dismissing the charges against him.

Again the trial court refused, stating, “I don’t think that I have the authority on the facts in this case to order the State to produce the informant.” The trial court then found defendant guilty of the offenses charged.

In a post-trial motion, defendant continued to argue, as he had done previously, that it was error for the trial court to have proceeded to trial without requiring the State to produce the informant or make him available to defendant. The court denied the post-trial motion and sentenced defendant, who had no prior convictions and had been employed as a roofer, to the minimum sentence of six years’ imprisonment.

Opinion

Defendant raises the issue of whether the State was obligated to produce the informant and whether its failure to do so warranted dismissal of the case.

Any discussion of the informer’s privilege must begin with the benchmark case of Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623. In Roviaro the Court held that the informer’s privilege, which is really the government’s privilege to withhold the identity of persons who have provided them with information regarding the commission of a crime, is limited by the underlying purpose of the privilege, which is the furtherance and protection of public interest in effective law enforcement and the maintenance of channels of communication with informers by shielding their identity. Thus, the Court determined that “[w]here the disclosure of an informer’s identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Roviaro, 353 U.S. at 60-61, 1 L. Ed. 2d at 645, 77 S. Ct. at 628.

In People v. Lewis (1974), 57 Ill. 2d 232, 311 N.E.2d 685, our supreme court adopted the balancing test set forth in Roviaro for deciding issues regarding disclosure of an informant’s identity. The Lewis court quoted Roviaro, stating that “ ‘[w]hether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ ” (Lewis, 57 Ill. 2d at 235, 311 N.E.2d at 687, quoting Roviaro, 353 U.S. at 62, 1 L. Ed. 2d at 646, 77 S. Ct. at 629.) The Lewis court also held that to deny a defendant access to an informant when the informant could possibly provide the defendant with testimony that would be helpful to his defense is to deny the defendant his sixth amendment rights and, thus, the rule enunciated in Roviaro was consistent with Illinois Supreme Court Rule 412(j)(ii) (107 Ill. 2d R. 412(j)(ii)). The court went on to state that in instances where the informant is the only witness in a position to amplify or contradict the testimony of the government witnesses, then defendant must, at a minimum, be given the opportunity to interview the informer and call him as his own witness.

In this case, as in People v. Stumpe (1979), 80 Ill. App. 3d 158, 399 N.E.2d 292, we are not dealing with a nondisclosure of informant’s existence or identity, or a refusal to supply the address of the informant. Instead we are dealing with defendant’s claim that he was denied due process and the right to a fair trial by the State’s failure to produce the informant for interview prior to trial or at trial so that he could be called by defendant as a possible witness. In cases such as these, it is first encumbent upon defendant to establish the materiality and relevance of the informant before the burden devolves upon the State to produce the informant. (People v. Stumpe, 80 Ill. App. 3d at 163.) Once the materiality or relevance of an informant is shown, the State will have the obligation to produce the informant if he is or was employed by the State, or the State must show that it made a reasonable, good-faith and diligent effort to locate the informant. (People v. Stumpe, 80 Ill. App. 3d at 163.) If the State can show that the informant is no longer within its control and reasonable efforts have been made to locate the informant, the indictment against defendant need not be dismissed or a new trial ordered, unless defendant establishes that the informant’s testimony is likely to be exculpatory or that the informant could impeach the State’s evidence in such a manner that would raise a doubt as to its reliability. (People v. Stumpe, 80 Ill. App. 3d at 163.) For an informant to be a material witness, it is not essential that he be present at or participate in the alleged offense if he has played an important rule in setting up the offense (People v. Raess (1986), 146 Ill. App. 3d 384, 496 N.E.2d 1186) and the defense calls into question the manner in which defendant became involved in the alleged offense, for example, where defendant presents a defense of entrapment. See People v. Connor (1988), 176 Ill. App. 3d 900, 531 N.E.2d 966.

Although defendant here did not present an entrapment defense, defendant contended that the informant was present at and participated in the transaction and that the informant “set him up” to make it appear as though defendant was the drug contact when, in fact, it was the informant who had supplied and sold the drugs to Guerrieri. For this reason we believe that defendant did establish the materiality and relevance of the informant and that due process required the State to produce the informant to afford defendant the opportunity to, at a minimum, interview the informant.

Although the State’s witness Guerrieri testified that defendant was the individual to sell the controlled substances to him, his testimony was virtually uncorroborated. Guerrieri’s partner, Officer Hutch, only witnessed the scene from several feet away. Furthermore, neither Guerrieri nor Hutch had ever met defendant prior to September 9, 1986, and Hutch claimed that he did not know the informant. Thus, Hutch actually only corroborated the fact that a man approached Guerrieri’s car and that this man left in a blue truck and then returned to the area. Thus, Hutch’s testimony is entirely consistent with defendant’s testimony that it was the informant and not himself who conducted the drug transaction and, consequently, only the informant was in a position to amplify or contradict the testimony of Guerrieri concerning defendant’s culpability for the offense charged. In light of the fact that defendant’s arrest was not contemporaneous with the alleged offense (defendant was not arrested until nearly four months later) and defendant was never contacted again or implicated in any additional alleged offenses, we find that the strength of Officer Hutch’s corroborative testimony is severely diminished. We also find it significant that Guerrieri did not keep the piece of paper with defendant’s phone number on it, which he alleged defendant had given him and which would have provided a link with defendant.

Furthermore, we find that the State was obligated to produce the informant since the informant had been employed by the State and was within the State’s control until June 1987, when defendant had requested that the informant be made available for interview as early as March 1987. Although the State is not generally obligated to keep an informant within its control until the time of trial and may not restrict an informant’s ability to travel freely (see People v. Contursi (1979), 73 Ill. App. 3d 458, 397 N.E.2d 331), the facts of this case indicated that the State continued to employ the informant on a regular basis until just a few weeks prior to trial. We also find it highly significant that prior to the trial the court had ordered the informant to be produced and the State had agreed but, subsequently, merely contended that it had requested the informant to appear at trial but that the informant refused. This evidence indicates that the State did not meet its burden of producing the informant or of establishing that it had made diligent efforts to do so.

Based upon our above decision, we find it unnecessary to address defendant’s claim of ineffective assistance of counsel.

The judgment of the circuit court of Cook County and defendant’s conviction are reversed and the cause remanded for new trial.

Reversed and remanded.

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


author: JUSTICE McMORROW

text:
    MARIE TOLBERT, Plaintiff-Appellant, v. ST. FRANCIS EXTENDED CARE CENTER, f/n/a Three Oaks Nursing Home, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—88—1114
    Opinion filed September 28, 1989.

      Claudia Oney and Mark Rivera, both of Chicago, for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Gerald Maatman, Jr., and William M. Sneed, of counsel), for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Marie Tolbert (Tolbert) appeals from the trial court’s dismissal with prejudice of her complaint against St. Francis Extended Care Center (the Extended Care Center or the Center) alleging that the Center wrongfully terminated Tolbert’s employment because of her age. The trial court dismissed the complaint with prejudice on the ground that (1) the pleading was preempted by the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1 — 101 et seq.) and (2) the pleading did not state a cause of action for breach of an employment contract between Tolbert and the Center. On appeal, Tolbert argues inter alia that the policy manual issued to her by the Extended Care Center constituted an employment contract. We conclude that the manual created no employment contract and affirm the trial court’s ruling on that basis.

Tolbert’s complaint alleged the following pertinent facts. Tolbert had been employed by the Extended Care Center since 1966. During this employment, the Center issued to Tolbert and other employees a Statement of Personnel Policies (the policy manual). Tolbert was requested to sign the last page of the manual, return the signature page to the Center, and keep the remaining pages. Tolbert did as requested. Tolbert’s employment was terminated by the Extended Care Center in March 1986 on the ground that she had been sleeping on one occasion during her shift. Tolbert alleged in her complaint that she had not been sleeping, and that the Center’s actual reason for terminating her employment was to rid its workplace of older employees.

Tolbert alleged that the Extended Care Center’s termination of her employment constituted a breach of contract and asserted that the policy manual set forth contractual promises on the part of the Center that it would discharge employees only for “just cause.” The policy manual recited in pertinent part that the purpose of the manual was to tell employees “what the Extended Care Center offers you as an employee, and what the Extended Care Center will expect of you in return.” With regard to termination of employment, the manual stated that “[t]he extended care center [sic] reserves the right to dismiss an employee for any violation of professional conduct. Violation of policies, rules and regulations may result in dismissal. If an employee’s work is unsatisfactory, he will be informed of this by the department head or his delegate and encouraged to improve.” The manual also set forth the Center’s standards of professional conduct, as well as its policies, rules and regulations.

The trial court dismissed the complaint with prejudice following briefing and argument of the parties, concluding that the pleading was preempted by the Illinois Human Rights Act and that the facts alleged in the complaint were insufficient to establish that the parties had a contract for Tolbert’s permanent employment terminable only upon “just cause.” Tolbert appeals.

Although the parties’ initial argument on appeal pertains to whether Tolbert’s complaint is preempted by the Illinois Human Rights Act (see, e.g., Seehawer v. Magnecraft Electric Co. (N.D. Ill. 1989), 714 F. Supp. 910), we need not and do not consider this question. Assuming arguendo that the complaint is not preempted by the Act, we hold that the pleading is nevertheless insufficient to show the existence of a contract for permanent employment between Tolbert and the Center whereby Tolbert’s employment could be terminated by the Center only for “just cause.”

The Illinois Supreme Court recently set forth the factors to be considered in determining whether a policy manual issued by an employer to its employees constitutes a contract of employment:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the [policy manual], and under traditional principles a valid contract is formed.” Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 490, 505 N.E.2d 314.

The question in the instant cause centers on the first factor specified in Duldulao, i.e., whether the language of the policy manual contains a promise clear enough that an employee would reasonably believe that an offer has been made. To support her argument that the language of the Center’s policy manual satisfies this criteria, Tolbert emphasizes that the manual specifically states that it sets forth “what the Extended Care Center offers you as an employee, and what the Extended Care Center will expect of you in return.” Tolbert also points out that the policy manual sets forth specific grounds for an employee’s discipline or dismissal. Read together, Tolbert maintains, these provisions were such that an employee “would reasonably believe that he or she would not be terminated except for the reasons stated” in the policy manual, i.e., for “just cause.” We disagree.

A similar argument was recently made to and rejected by the court in Doe v. First National Bank of Chicago (7th Cir. 1989), 865 F.2d 864. In Doe, an employee memorandum setting forth the employer’s standards for employees’ work performance and personal conduct, in relevant part stated, “We think it is also important that you be aware of the standards of performance and personal conduct that are expected of all employees ***.” (865 F.2d at 866.) The memorandum “listed two classifications of employee misconduct, ‘major offenses’ and ‘minor offenses.’ According to the memorandum, commission of a major offense ‘is cause for immediate dismissal,’ while commission of a minor offense provides cause for ‘disciplinary action.’ ” (865 F.2d at 866.) In concluding that the employee memorandum did not create an express contract of employment, the court reasoned as follows:

“A comparison of the employee handbook contents involved in Duldulao and the language in the *** employee memorandum demonstrates that the *** memorandum falls far short of creating a contract. In Duldulao, the employee handbook clearly stated that ‘permanent employees “are never dismissed without prior written admonitions and/or an investigation that has been properly documented” . . . and that “three warning notices within a twelve-month period are required before an employee is dismissed.” ’ 115 Ill. 2d at 491 *** (emphasis in court’s decision). Because the language was clearly mandatory, the Illinois Supreme Court found that the handbook created enforceable rights. 115 Ill. 2d at 491 ***. Other Illinois courts have also held that an employee handbook or similar document creates enforceable contractual rights only when specific procedures have been prescribed by positive and mandatory language. [Citations.]
The *** employee memorandum contains none of the clear, promissory language that the court relied upon when finding an enforceable contract in Duldulao. The letter is informational in tone, describing major and minor offenses, but contains no description of specific disciplinary procedures. The memorandum provides that employees may be disciplined or discharged for listed misconduct, but it does not purport to promise that specific disciplinary procedures will be used. The language of the *** employee memorandum thus falls short of the requirements of Duldulao [citation].” Doe, 856 F.2d at 872, citing DeFosse v. Cherry Electrical Products Corp. (1987), 156 Ill. App. 3d 1030, 510 N.E.2d 141; Land v. Michael Reese Hospital & Medical Center (1987), 153 Ill. App. 3d 465, 505 N.E.2d 1261; Free v. Holy Cross Hospital (1985), 153 Ill. App. 3d 45, 505 N.E.2d 1188.

We conclude that the Center’s policy manual, similar to the employee memorandum in Doe, is insufficient to satisfy the requirements of Duldulao. As in Doe, the policy manual at issue here provides no specific procedures to be followed in the event that an employer chooses to discipline or dismiss an employee on the ground that the employee’s conduct falls below the standards stated in the manual. Such procedures for discipline or dismissal are necessary to determine objectively whether the employer is correct in its conclusion that the employee’s discipline or dismissal is supported by “just cause.” Articulated procedures are, therefore, a fundamental and necessary part of an employment contract which provides for an employee’s discipline or dismissal only upon “just cause.” In the absence of such specific procedures in the Center’s policy manual, the manual does not rise to the level of an enforceable employment contract. In addition, the prefatory language of the policy manual regarding “what the Center offers” its employees does not, in our view, rise to the level of an offer for permanent employment terminable only upon just cause. We therefore hold that the trial court properly dismissed Tolbert’s breach of contract claim against the Center.

In her opening brief on appeal, Tolbert also contends that the trial court erred when it denied her motion to reconsider the dismissal of her complaint. In the motion to reconsider, Tolbert argued that she should be provided an opportunity to respond to the Center’s claim, made for the first time in the Center’s reply to Tolbert’s response to the Center’s dismissal motion, that the policy manual did not create an enforceable employment contract. In this appeal, however, Tolbert has been able to present those arguments she wished to address to the trial court, and she does not contend that she should be provided an opportunity to amend her complaint to allege additional facts supporting her claim that the policy manual constituted an employment contract. In her reply brief, Tolbert states that “[i]f the appellate court decides to rule on whether the plaintiff has stated a cause of action, she has no objection. The plaintiff has simply been seeking a forum in which she could thoroughly present this portion of her case.” Under these circumstances, we find no abuse of discretion in the trial court’s denial of Tolbert’s motion for reconsideration.

For the reasons stated, the order of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


text:
    JOSEPH E. McHUGH, Plaintiff-Appellant, v. RICHARD OLSEN, Indiv. and as a General Partner of Farwell Partners Limited Partnership, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—88—1221
    Opinion filed September 28, 1989.

      Edward A. Cohen, of Block, Levy & Associates, of Chicago, for appellant.
    Richard B. Edelman, of Law Offices of Brasch & Edelman, of Arlington Heights, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court awarding him $4,100 plus costs as compensation for legal services he rendered to the various named defendants, both jointly and severally (hereinafter Olsen). Plaintiff contends that the trial court erred in not awarding him the $10,000 fee he requested, based either on a quantum meruit theory or an account stated theory.

This cause of action is based upon services performed in connection with three real estate transactions occurring between November 1985 and January 1986. It is undisputed that plaintiff, who had been practicing law for 25 years and concentrated his practice in real estate acquisitions, syndications and tax shelter investments, performed all the legal services for Olsen and the limited partnerships he formed in connection with these three real estate transactions. The dispute arises over the value of these services. Both parties agree that there was no express written contract for payment and that plaintiff agreed to discount the cost of his services because Olsen had been a friend of plaintiff’s son. However, they disagreed about the terms of the informal agreement for payment.

Olsen testified that he first sought plaintiff’s legal services in 1983 and at that time plaintiff indicated that he would charge no more than $100 per hour. Plaintiff provided legal services involving real estate transactions for Olsen on at least two occasions prior to the three transactions which are the subject of the case at bar. On those two occasions plaintiff sent Olsen a bill for his services upon the completion of that work. The bills stated the number of hours spent in connection with the work performed and the total amount due. According to these figures plaintiff’s services were billed at a rate of $75 per hour on the first transaction and $88 per hour on the second transaction. Olsen paid these accounts in full.

Olsen further testified that when he contacted plaintiff in October 1985 in regard to the three real estate transactions which are the subject matter of this suit, he believed that the informal agreement for billing at about $100 per hour would still be honored. Thus, when he, in March 1986, received plaintiff’s bill which had no accounting for time spent, he was of the opinion that the charge was unreasonable and refused to pay it.

Plaintiff, however, testified that he never proposed to Olsen an hourly rate for services. Instead, plaintiff testified that it had always been his policy to charge Olsen on the basis of the value of his services, and that he calculated the value of his services by factoring in his time spent, the complexity of the issues involved, and the typical costs of maintaining his practice. Plaintiff argues that he utilized this same method of billing when he billed Olsen $10,000 for the legal services he performed in connection with the three real estate transactions involved here. Specifically, he argues that he engaged in extensive negotiations with a savings and loan association regarding its loan commitment and that he prepared and reviewed numerous documents, including loan, wrap-around mortgage, assignment, escrow, and partnership agreement documents. Plaintiff states that the three transactions handled by him for Olsen involved real property valued at over $1.7 million. He also argues that his $10,000 fee, which took into account a 40% discount, was the reasonable value of his services based upon the time spent on these matters, the complexity of the transactions and the experience and legal knowledge that was necessary to successfully complete these transactions.

In an attempt to establish the value of his services, plaintiff introduced into evidence extensive testimony regarding the transactions and the services he performed. He established that two of the transactions involved the purchase of property by limited partnerships, while the third transaction involved the refinancing of property previously purchased by Olsen.

With regard to the first transaction, Olsen, the sole general partner, sought investors to form a limited partnership to purchase rental property at 1519-27 West Harwell in Chicago. After obtaining a commitment for financing through a lender, Olsen sought plaintiff’s services to draft the limited partnership agreement and prepare or review all documents necessary to close the purchase of the property in the name of the limited partnership, Harwell Partnership. Plaintiff performed all the necessary legal services, and the closing on this property took place in November 1985.

The second transaction involved the refinancing of rental property located at 1346-66 West Jarvis in Chicago. Olsen had previously purchased the property and requested plaintiff’s advice in reviewing the documents necessary for refinancing the property with a different lender.

The third transaction involved the purchase of another rental property, 1500-04 West Farwell, by another group of investors organized by Olsen to form a second limited partnership. In this case Olsen already owned the property but wished to transfer ownership of the property to the newly formed limited partnership, of which he was the sole general partner. The second and third transactions, which were originally scheduled to close in December 1985, did not actually close until January 1986 due to certain documentation errors.

After all the closings on these transactions were successfully completed and after plaintiff prepared and delivered to Olsen the “closing books,” which contained copies of all the pertinent documents in connection with these transactions, plaintiff forwarded to Olsen invoices for his legal services rendered. Plaintiff established that the first set of billing statements were sent to Olsen in March 1986, with monthly billings thereafter. These statements merely indicated that the amount due for legal services rendered in connection with the property at 1519-27 West Farwell was $3,500, the amount due for legal services rendered in connection with 1346-66 West Jarvis was $3,000 and the amount due for legal services rendered in connection with the property at 1500-04 West Farwell was $3,500. Plaintiff’s statements did not provide a breakdown of the hours expended on the performance of legal services for any of the three real estate matters.

Plaintiff further testified that in August 1986, after Olsen repeatedly disregarded his requests for payment, he telephoned Olsen regarding the unpaid bills. At this time Olsen, for the first time, related his dissatisfaction with the amounts being requested by plaintiff. Plaintiff then provided Olsen with an oral explanation of his computation of the fees, and this explanation was accepted by Olsen. According to plaintiff, Olsen agreed to pay him a down payment of $3,000 and the balance in monthly installments. As evidence of this arrangement plaintiff submitted to the court a copy of a letter sent to Olsen in November 1986, which outlined the above arrangement for payment and also indicated that Olsen had continued to avoid fulfilling his obligation to pay for the services rendered.

Olsen’s testimony with respect to the August telephone conversation contradicted plaintiff’s evidence. Although Olsen admitted that a telephone conversation took place in August 1986, he denied that he agreed to pay plaintiff the full $10,000 fee as requested. Instead, Olsen testified that he offered plaintiff $3,000 as payment in full. Olsen also admitted that he never attempted to pay plaintiff any amount for the legal services that were rendered.

In addition to the “closing books,” the copies of the invoices for payment and plaintiff’s letter to Olsen, the only other physical evidence admitted at trial were plaintiff’s time slips, which indicated that in November and December 1985 plaintiff spent a total of 41 billable hours in connection with the three real estate transactions involved here. Plaintiff, however, maintained that his records were incomplete. He testified that he had spent in excess of 75 hours on the work he performed at the request of Olsen. He also argued that the time he actually spent did not reflect the true value of the services rendered, due to the complexity of the issues and the amount of legal sophistication that was necessary to properly complete these transactions. Olsen, on the other hand, challenged the 41 hours, arguing that the time slips were incomplete and duplicative.

To establish the true value of his services, plaintiff presented attorney Edward Puzzo as an expert witness. Puzzo began the practice of law in 1980 and concentrated his practice in the area of real estate law. He testified that, based upon his review of the “closing books,” the complexity of the three real estate transactions involved in the case at bar required the legal services of an experienced professional and that the cost of such services in the community would range between $5,000 and $10,000 for each transaction, or a total amount of between $15,000 and $30,000. He also testified that he believed plaintiff’s fee of $10,000 was reasonable, although he admitted that he had only inspected the documents contained in the “closing books,” and that he did not know whether plaintiff was required to draft any of these documents or merely review them. Significantly, he testified that he had no knowledge of the amount of time plaintiff actually spent in relation to the three transactions.

After closing arguments, the trial court rendered its judgment in favor of plaintiff in the amount of $4,100 plus costs based on the theory of quantum meruit. Plaintiff appeals, contending that the trial court erred by failing to find that the actual value of his services was $10,000. In the alternative, plaintiff argues that the trial court erred by failing to find that there had been an account stated in the amount of $10,000.

An attorney who renders professional services has the right to be compensated for those services. (Greenbaum & Browne, Ltd. v. Braun (1980), 88 Ill. App. 3d 210, 410 N.E.2d 303.) Typically, an express or implied contract for services is the basis for the fee charged. When, however, as in this case, a representation agreement is undisputed, but the evidence reveals that there was no “meeting of the minds” with regard to the fee arrangement, the trial court must determine a reasonable fee to be awarded. (In re Estate of Healy (1985), 137 Ill. App. 3d 406, 484 N.E.2d 890.) The burden of proof is on the attorney to establish the amount of compensation rightfully due for the services. In re Estate of Healy (1985), 137 Ill. App. 3d 406, 484 N.E.2d 890; Greenbaum & Browne, Ltd. v. Braun (1980), 88 Ill. App. 3d 210, 410 N.E.2d 303.

The trial court may determine a proper fee award after considering such factors as the time and labor required, the novelty and difficulty of the issues, the skill required, the preclusion of other employment necessary to accept the case, the customary fee charged in the community, the amount of money involved in the case, the results obtained and the attorney’s reputation, experience and ability. (In re Estate of Healy, 137 Ill. App. 3d at 409; Mireles v. Indiana Harbor Belt R.R. Corp. (1987), 154 Ill. App. 3d 547, 507 N.E.2d 129; Simon v. Auler (1987), 155 Ill. App. 3d 1000, 508 N.E.2d 1102.) The time spent on a case by an attorney is an important factor to be considered in the determination of the fee award. (In re Marriage of Ransom (1981), 102 Ill. App. 3d 38, 429 N.E.2d 594.) Time records, although important, are not conclusive and should be scrutinized to determine whether they represent a reasonable expenditure of time in the context of the work performed. (In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 411 N.E.2d 947.) The trial judge’s experience and knowledge may be relied upon in determining what constitutes a proper expenditure of time, and the trial court’s award of fees is not to be disturbed unless contrary to the manifest weight of the evidence. In re Estate of Healy, 137 Ill. App. 3d at 411.

In the case at bar it is undisputed that plaintiff is an attorney experienced in real estate law who rendered legal services to Olsen upon request, and that as a result of plaintiff’s services, three real estate transactions were successfully completed. It is also undisputed that two of these transactions involved the formation of limited partnerships and the acquisition of property in the name of these newly formed partnerships. The complexity of the work required a skilled and experienced attorney for proper completion. It appears that plaintiff’s legal work was satisfactorily completed, although there was minor complaint regarding the delay in the closings on the second and third transactions. Therefore, the major dispute before the trial court was the value of plaintiff’s services.

A review of the record persuades us that the trial court resolved this issue by determining that plaintiff was entitled to a billing rate of $100 per hour, multiplied by the number of hours that plaintiff spent on these matters, as reflected in his time records. Plaintiff testified that his records were incomplete, and the time spent on Olsen’s matters exceeded the time recorded. He argues that the value of his services, irrespective of the number of hours actually expended, should be the standard used to determine a proper fee award. In support of this argument plaintiff’s expert witness, Edward Puzzo, an attorney, testified that it would be customary within the community to charge between $15,000 and $30,000 for the legal services necessary to complete the type of real estate transactions involved in the case at bar. However, since Puzzo testified that he did not know whether plaintiff drafted or merely reviewed the documents examined by Puzzo, and that he had no knowledge of the amount of time plaintiff expended in the performance of his services in connection with the three real estate transactions, the trial court was not bound to accept Puzzo’s testimony in its determination of what constituted a reasonable fee. (In re Estate of Healy, 137 Ill. App. 3d 406, 484 N.E.2d 890.) The trial court could have reasonably determined that the amount of time reflected in plaintiff’s time records was a more appropriate basis for assessing fair compensation.

Based upon plaintiff’s previous business dealings with Olsen, for which plaintiff charged Olsen less than $100 per hour, we are unable to find that the trial court abused its discretion when it determined that $100 was an adequate hourly billing rate. We are also unable to find that the trial court abused its discretion when it premised its fee award on the recorded time spent on the transactions by plaintiff and a billing rate of $100 per hour. Consequently, we do not find that the $4,100 fee award was against the manifest weight of the evidence.

We reject plaintiff’s argument that an account stated was created by Olsen’s alleged acquiescence to plaintiff’s explanation of the charges and Olsen’s continued inaction. “An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance.” (W.E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1985), 132 Ill. App. 3d 260, 267, 477 N.E.2d 513.) Plaintiff argues, and Olsen does not dispute, that he sent monthly statements to Olsen from March 1986 to August 1986, and that Olsen failed to respond to those statements. In August 1986, plaintiff called Olsen to inquire about payment. The testimony of the parties regarding the contents of that telephone conversation differs substantially: plaintiff testified that Olsen agreed to pay the entire amount, whereas Olsen testified that the parties agreed to payment of $3,000 in full settlement. We are not persuaded that an account stated was created because it appears that there was no mutual assent or meeting of the minds as to the correctness of the charges. The trial court was free to reject plaintiff’s testimony that Olsen agreed to payment of the $10,000 during the parties’ telephone conversation in August 1986. Whether an account stated exists is a fact question properly resolved by the trial court. (La Grange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 1053, 436 N.E.2d 645.) Based on our review of the record, we conclude that there was sufficient evidence to support the trial court’s failure to find an account stated.

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

Judgment affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    ROBERT HARRELL et al., Plaintiffs-Appellants, v. MONTGOMERY WARD & COMPANY, INC., Defendant-Appellee.
    First District (4th Division)
    No. 1—88—1592
    Opinion filed September 28, 1989.

      Charles Barnhill, Jr., Terri Finesmith Horwich, and George J. Galland, Jr., all of Davis, Barnhill & Galland, of Chicago, for appellants.
    Jeffrey Torf, of Montgomery Ward & Co., Inc., of Chicago, and N. Thompson Powers, Ronald S. Cooper, and Lisa B. Dickieson, all of Steptoe & Johnson, of Washington, D.C., for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Robert Harrell, brought this action alleging that the defendant, Montgomery Ward & Co. (Ward), discharged him from its employ in violation of the terms of certain policy statements issued by Ward. The trial court granted Ward’s motion to dismiss the complaint for failure to state a cause of action (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), and Harrell has appealed. The issue on appeal is whether the allegations of the complaint sufficiently state a claim for breach of an employment contract pursuant to Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, which held that an employer’s policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present.

Harrell was an upper-level management employee of Ward until the termination of his employment in 1981. As such, he supervised other management employees. Harrell’s amended complaint contained the following allegations. During the course of his employment, Ward promulgated a personnel manual which it updated and supplemented at various times with additional policy statements. Harrell bases his breach of contract claim upon statements contained in three documents: a chapter in the 1981 personnel manual entitled “Types of Separation”; a supplemental policy entitled “Employee Probation/Termination Procedure” (Probation Procedure); and a special program called the “Voluntary Separation Program” (VSP).

Briefly, the “Types of Separation” chapter in the personnel manual described several ways in which an employee could be separated from his employment at Ward, including resignation, layoff, discharge, retirement, disability, death and deactivation. Under the heading “Discharges” appeared the statement that “[a]n employee is discharged when [his] conduct or actions are determined to be detrimental to the best interests of the Company.” This statement was followed by a section which listed the following reasons for discharge: attendance, performance, cause and “Discharge Other.” Further details regarding the manual will be provided later in connection with our discussion of the issues.

The probation procedure, the second document upon which Harrell relies, was disseminated to all “Supervisors of Management (Ledger) Employees” in August of 1981. It outlined a specific and detailed procedure to correct significant performance deficiencies and stated that the procedure “must be taken” with any employee “rated ‘MM + ’ or lower.” The procedure essentially consisted of probation and counseling followed by termination of employment where rehabilitation was not achieved.

The VSP was a special program targeted at top-level management employees. Through this program, Ward offered separation pay and other benefits in exchange for the employee’s voluntary separation from employment. The letter accompanying the VSP offer stated that “[a]s the title implies, your participation is voluntary *** [s]ince the program is voluntary, you do have the right to accept or reject the offer.” Attached to the letter was “an application form to accept or reject the Voluntary Separation Program offer.”

The plaintiff alleged that these three policy statements were circulated to him, that he reasonably believed that they governed the circumstances under which he could be separated from employment and that he accepted the “offer” formed by the policy statements by continuing to work after learning of their existence. In September of 1981, Ward attempted to coerce Harrell into resigning by defaming his business reputation, indicating to him that he was not wanted and searching for his successor while he intended to remain at Ward. Harrell alleged that these actions caused him to believe that he was being forced to resign and that he was required to accept participation in the VSP before Ward would pay him the benefits which he was entitled.

Harrell further alleged that the VSP document was a “sham,” and that his termination violated the terms of the personnel manual, the probation procedure and the VSP.

The sole question before us is whether the allegations of-Harrell’s complaint are sufficient to state a claim for breach of an employment contract.

The complaint was dismissed pursuant to a motion filed under section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). For purposes of a section 2 — 615 motion to dismiss, all facts well pleaded must be taken as true and interpreted in the light most favorable to the plaintiff. (Free v. Holy Cross Hospital (1985), 153 Ill. App. 3d 45, 49, 505 N.E.2d 1188.) A complaint is properly dismissed for failure to state a cause of action only where it appears that no set of facts can be proved which would entitle the plaintiff to relief. Torres v. Amoco Corp. (1989), 186 Ill. App. 3d 135.

Under Illinois law, an employment relationship without a fixed duration is terminable at will for any reason or no reason at all absent a violation of clearly mandated public policy. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Bennett v. Evanston Hospital (1989), 184 Ill. App. 3d 1030, 540 N.E.2d 979.) In Duldulao v. Saint Mary of Nazareth Hospital (1987), 115 Ill. 2d 482, 505 N.E.2d 314, the Illinois Supreme Court interpreted the general “employment-at-will rule” as a rule of construction which mandates a presumption that a hiring without a fixed term is at will. This presumption can be overcome by demonstrating that the parties contracted otherwise using the traditional requirements of contract formation. As stated by the court:

“[W]e hold that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.

We will first address Harrell’s claim that he was terminated from his employment in violation of the policy statements contained in the 1981 personnel manual. Essentially, Harrell argues that the sentence in the manual stating “[a]n employee is discharged when [his] conduct or actions are determined to be detrimental to the best interests of the Company” constituted a clear promise which would lead a reasonable employee to conclude that Ward was making an offer to discharge employees only for some specific cause, such as poor performance or misfeasance. Harrell alleged that he accepted the offer by continuing to work and that Ward breached the contract by terminating him without cause. Underlying this argument is Harrell’s allegation that his participation in the VSP was a sham and that Ward’s actions in effect amounted to a constructive discharge.

For a policy statement to create contractual rights under Duldulao, the first requirement is that the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Although Harrell contends that the existence of such a promise is a question of fact, the courts which have considered this issue have held that it is a threshold question of law to be determined by the court. (Hunt v. IBM Mid America Employees Federal Credit Union (Minn. 1986), 384 N.W.2d 853, 856.) This is in line with Illinois law stating that the provisions of a written instrument are to be interpreted by the court. Northern Illinois Construction Co. v. Zale (1985), 136 Ill. App. 3d 822, 824, 483 N.E.2d 1013.

The plaintiff has not cited and we have not found any case in which the simple definition of a term, without more, has been held sufficient to constitute a clear promise as required by Duldulao. In the Duldulao case, the employees were given a handbook which stated that the policies contained therein were “designed to clarify your rights and duties as employees.” (Duldulao, 115 Ill. 2d at 486, 505 N.E.2d at 316.) The handbook set out a disciplinary procedure, then stated that permanent employees “are never dismissed without prior written admonitions and/or an investigation that has been properly documented,” that “three warning notices within a twelve-month period are required before an employee is dismissed,” and that “termination contemplated by the hospital cannot occur without proper notice and investigation.” (Emphasis in original.) (Duldulao, 115 Ill. 2d at 491, 505 N.E.2d at 318.) The court concluded that the above-quoted language was sufficient to allow an employee to reasonably believe that the disciplinary procedure was part of the employer’s offer. Relying upon Duldulao, the court in Free v. Holy Cross Hospital (1985), 153 Ill. App. 3d 45, 505 N.E.2d 1188, held that the allegation that an employee manual included a system of progressive discipline and a provision that employees could be discharged only for “just cause” was sufficient to survive a motion to dismiss for failure to state a cause of action.

Another example of a policy statement containing language sufficient to constitute an offer is contained in Pine River State Bank v. Mettille (Minn. 1983), 333 N.W.2d 622, the case relied upon by the Duldulao court. The employee handbook in Pine River contained a statement that “ ‘[i]f an employee has violated a company policy, the following procedure will apply’ ” (333 N.W.2d at 626 n.3.), followed by a step-by-step process of progressive discipline. The handbook also stated that “ ‘[i]n no instance will a person be discharged from employment without a review of the facts by the Executive Officer.’ ” (Pine River, 333 N.W.2d at 626 n.3.) The Pine River court held that by this language the employer made a specific offer to restrict its freedom to terminate the employee at will in exchange for the employee’s continued labor. Similarly, in Lewis v. Equitable Life Assurance Society (Minn. 1986), 389 N.W.2d 876, 880, n.l, the court found that language stating “ ‘no employee will be discharged without’ ” following certain procedures limited the employer’s right to freely dismiss its employees and was sufficient to constitute an offer.

In contrast to the above-cited cases, general statements of company policy or procedures which are discretionary in nature have been held too indefinite to constitute a clear promise which could reasonably be interpreted as an offer. See Torres v. Amoco Cory. (1989), 186 Ill. App. 3d 135, 136-37 (statements such as “professional growth and advancements are a reward for good performance” and “how well you do your job is the final factor in determining how much you earn” were too indefinite to constitute a promise); see also Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 529 N.E.2d 281 (section entitled “Guidelines for Discipline” which suggested procedures which could be used at the discretion of the supervisor was not sufficient to constitute an offer).

In the case at bar, the language relied upon by Harrell appears in a chapter of the 1981 personnel manual entitled “Separations.” The “Types of Separations” are listed as resignation, layoff, discharge, retirement, disability, death and deactivation. Next to each type of separation is a code to be used in documenting the termination in order to establish the employee’s eligibility for reemployment and benefits. The manual states that “[t]he separation code assigned should provide the most accurate description of the condition under which the individual was separated from employment.” Under the heading of “Discharges,” the manual states, “[a]n employee is discharged when [his] conduct or actions are determined to be detrimental to the best interests of the Company.” It then lists various reasons for discharge including, “Discharge Attendance,” “Discharge Performance,” “Discharge Cause,” and “Discharge Other.” Each reason had a separate code number next to it.

Our review of the language relied upon by Harrell leads us to conclude that it fails to meet Duldulao’s requirement of a clear promise. Unlike the cases cited above, the manual contains no provision limiting or restricting the employer’s ability to terminate the employment relationship at will. It appears that the definition of discharge exists solely as a guideline for classifying separations in order to determine an employee’s benefits and eligibility to be rehired. Under these circumstances, we do not believe that the language of the manual contains a promise clear enough that an employee would reasonably believe it to be an offer.

The second document on which Harrell bases his breach of contract claim is the probation procedure, a supplementary procedure adopted by Ward in August of 1981 and distributed to all supervisors of management employees. The procedure was designed to rehabilitate poor performers and was required to be undertaken with all employees who had a performance rating of “MM+” or lower.

Even if we were to accept Harrell’s argument that the probation procedure was contractually binding on Ward, he has failed to allege that he had a performance rating that would bring him within the ambit of the procedure. With respect to performance, the complaint alleges that Harrell “performed [his] duties at Ward in a satisfactory manner.” In its brief in support of its motion to dismiss Harrell, Ward stated that the probation policy by its terms applied only to employees with a poor performance rating. At the hearing on the motion to dismiss, Ward again argued that the complaint failed to plead that Harrell had a performance rating which would bring him within the ambit of the probation policy and thus failed to sufficiently plead that the policy which Ward allegedly breached by discharging Harrell had any application to him. Harrell failed to respond to this argument in the trial court and does not contend on appeal that his performance rating would bring him within the ambit of the probation policy. His sole contention on appeal is that the complaint, which alleges that Ward violated the probation policy by discharging him, sufficiently alleged that the policy applied to him. We disagree. Under Illinois law, the plaintiff must plead facts, not conclusions. (Village of Niles v. City of Chicago (1980), 82 Ill. App. 3d 60, 68, 401 N.E.2d 1235.) Harrell’s complaint contains no facts to support his claim that the probation policy applied to him.

Finally, Harrell contends that the language of the VSP letter constituted an offer which formed the basis of an employment contract under Duldulao. He maintains that the language of the letter contains a “promise of noncoercion” which was breached by Ward. According to Harrell’s analysis, the letter contained a clear promise that participation in the VSP was voluntary, which constituted an offer of non-coercion; that he accepted the offer by continuing to work for Ward; that his continued work constituted consideration sufficient to accept the offer of noncoercion; and that Ward breached the “contract” by coercing him to resign.

We are not persuaded by this strained attempt to fit the VSP letter into a Duldulao setting. Duldulao represented a recognition that in certain situations policy statements made by an employer have the effect of inducing employees to accept work or to continue to work for the employer and therefore should be binding on the employer if the requirements set out in Duldulao are met. This is in line with the rationale of Duldulao, which is that the presumption of employment at will can be overcome by demonstrating that the parties contracted otherwise.

It appears clear that the VSP offer here was not sent to Harrell as an offer to modify the at-will employment relationship or to induce him to continue to work for Ward. It contained an express offer to give Harrell benefits in exchange for his voluntary separation from the company. Given the clear language of the VSP, Harrell could not have reasonably believed it to offer anything other than what it expressly stated. The letter also stated that the only way to accept the offer was to do so in writing before a certain date. Harrell accepted the offer. His argument on appeal is essentially that he was coerced into entering the agreement. The remedy for coercion is rescission. Harrell has expressly stated in oral argument before this court that he is not seeking rescission. Under these circumstances, we believe that the trial court properly granted Ward’s motion to dismiss the complaint for failure to state a cause of action.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.

      Harrell is the sole plaintiff involved in this appeal. The other plaintiffs have settled their claims with Ward and have been accordingly dismissed.