author: PRESIDING JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER W. KEEFE, Defendant-Appellant.
    First District (6th Division)
    No. 1-89-0229
    Opinion filed February 8, 1991.

      Martin Carlson, of State Appellate Defender’s Office, and Schiff, Hardin & Waite, both of Chicago (James A. Clark and Gregory R. James, Jr., of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter Hehner, and Kevin Hughes, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant Christopher Keefe was charged with one count of attempted first degree murder, two counts of aggravated battery, and one count of armed violence. A jury found defendant guilty of all offenses. After trial, the court granted defendant’s motion for judgment of acquittal on the attempted murder charge, and ruled that the guilty verdicts on the aggravated battery counts merged for the purposes of sentencing. Subsequently, defendant was sentenced to concurrent prison terms of seven years’ imprisonment and three years’ mandatory supervised release on the armed violence count, and three years’ imprisonment and one year’s mandatory supervised release on the aggravated battery counts.

On appeal, defendant requests that this court reverse his convictions and grant him a new trial. Defendant contends: that the trial court erroneously prohibited defendant from testifying as to his state of mind at the time he was attacked; that the trial court erred in prohibiting defendant from questioning the victim and a witness about the victim’s character for violence; that the State’s use of a “hankie” or “bandanna,” which had the appearance of a Confederate flag, prejudiced defendant and denied him a fair trial; that the trial court erred in allowing testimony about defendant’s companion’s possession of a knife that was similar to defendant’s knife; that defendant’s armed violence conviction should be reversed because it constitutes an impermissible double enhancement, or alternately, that defendant’s aggravated battery conviction should be reversed because it is a lesser included offense of armed violence in this case, and the multiple convictions may not be premised on such closely related acts. We reverse and remand for a new trial.

The following facts were elicited at trial: Thomas Haller, the complainant, testified that on the evening of November 13, 1987, he had been at his home, drinking “[a] few beers” and “two or three” shots of whiskey. He was upset because someone had stolen his wallet at his house. Later that evening, he went to his friend Lorenzo Crockett’s house. At about 11:30 p.m., Haller and two other friends, Ina Whalen and Willie Willis, left Crockett’s house and proceeded to walk in the alley in back of Crockett’s house.

Haller further testified that he was talking with his friends when a car, driven by defendant and containing one passenger, pulled up beside them. Haller was not arguing prior to the car’s arrival, and Willis was not holding Haller up. Haller related that defendant pulled up and asked him if he [Haller] had a problem. Haller replied that he did and asked defendant if defendant had a problem. Defendant said that he did not have a problem. Next, according to Haller’s testimony, Willis told defendant that Haller had lost his money. The men in the car began laughing. Haller then “went up to the car and punched” defendant in the temple.

Defendant drove to the end of the alley, and then backed the car up and parked in a parking lot. Haller testified that defendant “threatened me, said he was going to kick my butt.” Haller became angry again and went to the car and punched defendant a second time. Defendant was still seated in the car. After being struck a second time, defendant exited from the car and began to fight Haller.

Haller further testified that, during the altercation, defendant knocked him down. When Haller got up, defendant charged at him. While the two men were wrestling, standing chest to chest, defendant stabbed Haller twice in the back. At no time during the altercation did Haller or his friends have a weapon.

During cross-examination, defendant’s counsel attempted to inquire about a statement Haller made to a doctor, indicating that Haller had been to the “hospital on several occasions because of *** injuries incurred while fighting otherwise.”

Ina Whalen testified that Haller was arguing with Willie Willis about Haller’s missing wallet, and that Willis was trying to calm Haller down when the car approached. Whalen stated that defendant asked if there was a problem, and that Haller then asked defendant if defendant had a problem. After Haller and defendant exchanged words, defendant parked the car. At this point Whalen, at the urging of Willis, left the area. Defense counsel attempted to ask Whalen if Haller had “threatened to fight” with someone concerning his wallet, but the trial judge disallowed the question.

Willie Willis also testified at trial. He said that he and Haller had been conversing for five minutes when defendant first approached. Haller asked defendant what he was looking at, or something to that effect. Willis corroborated Haller’s account of the altercation, as to Haller punching defendant twice while defendant was in the car, defendant getting out of the car on his own power, and the two men fighting. Willis did not see the stabbing, but did see the knife in defendant’s hand and noticed blood on defendant’s hands. Defendant returned to his car and drove off.

Tammy Wright, a Harvey, Illinois, police officer, testified that on the night of November 13, 1987, at about 11:52 p.m., she responded to a broadcast and found Haller injured. Willie Willis told her that one of the men in the car was a Mr. Harris, and Officer Wright put this information out to other police officers in the area. Defendant and the other occupant of the vehicle were located by Harvey police officer Billie Cantrell and were brought back to the scene for a showup. Cantrell produced two knives which she had recovered from defendant and the other passenger of the vehicle. During Wright’s testimony, she identified the knives and also identified a “hankie or bandanna” which was seized from the vehicle.

Officer Wright further testified that at about 4 a.m. the next morning, defendant signed a written statement at the police station, after being advised of his Miranda '-Warnings. The statement, which Wright read to the jury, provided:

“Going down the alley checking on the houses that Patty asked me to check on. Way back, saw three kids, one of them holding another, acting like he needed help. Stopped. Asked if they needed help. The white guy asked me if I had a problem. I told him no. Then, the black guy started pulling the white guy away from the car. White boy got away and hit me. I turned my car around to where it was heading east and parked it. The white boy came over to the car, opened the car door, pulled me out of it and I stabbed him one time in the back, or was it the front? I don’t even know. Then I flipped him on the ground. Then he came over to try to keep the white guy from swinging at me anymore. Then the black guy held him down, and I went and got in my car and pulled away from there about a half block and waited for the police.
I am giving this statement voluntarily and no threat’s been made against me to force me to give this statement.”

Harvey police officer Billie Cantrell testified that she found defendant and the co-occupant of defendant’s car, Zackery Harris, seated in the car about one-half block from the scene of the altercation. Harris stated that two subjects had just tried to rob them. Defendant’s knife was in plain view of Cantrell in the front seat of the car. Defendant’s knife was introduced into evidence, but neither the other knife (which belonged to Harris) nor the bandanna was introduced into evidence.

By way of stipulation, the following evidence was introduced: Dr. Vishnu Mathur examined Haller, at about 1 a.m. on November 14, 1987, at the Ingalls Memorial Hospital emergency room. Two stab wounds, which did not puncture any internal organs, existed at the back posterior to Haller’s lower chest. Haller’s blood-alcohol level was .22. Haller was discharged from the hospital on November 16, 1987.

Zackery Harris testified for defendant. Harris was a member of the South Suburban Citizens Patrol, and he and defendant were assigned to patrol on November 13, 1987. They began patrolling at about 7 p.m. that evening. At about 11:30 p.m., Harris and defendant came upon Haller and Willis, who were struggling. According to Harris, defendant asked the men if there was any problem, and Haller responded by striking defendant in the face. Harris said that neither he nor defendant laughed at Haller or Willis. After defendant was struck, he drove down the alley and parked in a parking lot, and told Harris to “get on the radio for help.”

While Harris was on the radio, Haller came to the car, pulled defendant out of the car and threw defendant against the car. “[Ajbout five minutes” later, Harris said, defendant got back in the car and drove away as Harris continued to call for help on the radio. When a unit of the South Suburban Citizens Patrol was contacted, defendant and Harris stayed where they were until the police arrived some five minutes later.

On cross-examination, Harris testified that he did not see defendant take out or open defendant’s knife, which Harris described as a folding “army knife.” Over objection, the State elicited that Harris possessed the same type of knife at the time of the incident. Harris stated that a Harvey police detective had told the members of Harris’ organization that they were not to carry concealed weapons or make arrests. Harris also said that he knew that defendant had a knife. A police station was one-half block away from where the stabbing took place, Harris said.

Finally, defendant testified in his own behalf. He related that at about 11:30 p.m. that night, he saw Haller and Willis struggling in the alley. Defendant stopped his car near the men and asked if there was a problem. Haller responded “No, I haven’t got a problem, but you are the problem.” Defendant denied laughing when Haller said this. Defendant stated that Haller hit him on the left side of the head. Defendant then drove down the alley and parked in a parking lot which was about 10 to 15 feet from the men. Defendant directed Harris to get some help on the radio.

Then, all of a sudden, the driver-side car door opened and Haller pulled defendant out of the car and pushed defendant against the car. Haller struck defendant in the face and proceeded to choke defendant. Defendant reached into his pocket, pulled out his knife, and “cut [Haller] on his back.” After this, Haller continued to try and fight, so defendant flipped Haller over his back. Because Haller was trying to kick him, defendant hit Haller twice in the face before getting back into the car and driving away. Defendant further testified that he was unaware that his knife was in his pocket when he began patrolling that night, and he only noticed the knife when he reached into his pocket for a cigarette.

On direct examination, defendant was allowed to state that he reached for his knife because he was being strangled, but defendant was not allowed to testify as to his feelings when he was pulled from the car, and as to whether he was afraid when he was being choked.

The evidence at trial revealed that while defendant and Haller were the same height, Haller outweighed defendant by 37 pounds.

The first issue we resolve is whether it was reversible error for the trial court to prohibit defendant from testifying as to his state of mind at the time he was attacked. At trial, defendant presented a theory of self-defense. The requirements for determining whether the use of force is justified as self-defense are as follows:

“ ‘(1) [Tjhat force is threatened against a person; (2) that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that the force threatened is unlawful; (5) that the person threatened must actually believe: (a) that a danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and amount of force which he uses is necessary; and (6) that the above beliefs are reasonable.’ ” (People v. Crum (1989), 183 Ill. App. 3d 473, 482, 539 N.E.2d 196, quoting People v. Kyles (1980), 91 Ill. App. 3d 1019, 1021, 415 N.E.2d 499.)

(See Ill. Rev. Stat. 1987, ch. 38, par. 7 — 1.) The determinative question where deadly force is used is whether defendant’s belief that it was necessary to use deadly force was reasonable under the circumstances. (People v. Collins (1989), 187 Ill. App. 3d 531, 534, 543 N.E.2d 572.) The privilege of using deadly force to protect oneself from another, if one reasonably believes he is in imminent danger of death or great bodily harm, exists even where one is mistaken or the danger is only apparent. People v. Rodriguez (1989), 187 Ill. App. 3d 484, 489, 543 N.E.2d 324.

“In criminal cases where the intention, the motive, or belief of the accused is material to the issue, he is allowed to testify directly to the fact.” (People v. Biella (1940), 374 Ill. 87, 89, 28 N.E.2d 111.)' “[S]elf-defense necessarily involves the question of whether defendant subjectively believed, at the time of the incident, that the force exercised against the victim was necessary.” (Emphasis in original.) (People v. Eshaya (1986), 144 Ill. App. 3d 757, 765, 494 N.E.2d 772.) “Where a claim of self-defense rests upon some reasonable basis, exclusion of state-of-mind testimony by a defendant will ordinarily constitute reversible error unless sufficient evidence of his intent is admitted at a subsequent stage of the trial.” People v. Christen (1980), 82 Ill. App. 3d 192, 194, 402 N.E.2d 378.

In this case, defendant’s counsel was allowed to elicit from defendant the reason that defendant took out his knife — the reason being “because [defendant] was being strangled.” However, the trial court disallowed the question, “Were you afraid?” and the trial court disallowed a question relating to what defendant was feeling at the time defendant was pulled from the car. Defendant argues that as the prohibited testimony went “directly to the crucial issue” of defendant’s intent, motive and belief, defendant had the right to testify to his state of mind. The trial court’s error in excluding this testimony was compounded, defendant argues, by the prosecutor’s comment in closing argument that “[y]ou have absolutely no evidence before you that the defendant was ever in fear for his life. He never told you that he was. He never told the police that he was. *** Therefore, him stabbing Tommy Haller in the back was not legally justified.” Later in the prosecutor's argument, the prosecutor again emphasized that defendant was “not in fear of losing his life.”

The State responds that defendant has waived this argument because he neither advanced this argument at trial nor included it in his post-trial motion. This court should not apply the “plain error” rule, the State argues, as the evidence was not closely balanced, and assuming error did occur, such error must be deemed harmless “in light of the overwhelming evidence of defendant’s guilt.”

In order to preserve an issue for appeal, a defendant must both make a contemporaneous objection and include it in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Since defendant did not include this matter in his post-trial motion, the issue is waived for appeal.

Under Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), however, “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Courts may consider plain error “where the record clearly shows *** an alleged error affecting substantial rights.” (People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 461.) This rule serves the dual purposes of “correcting serious injustices” and preserving “the integrity and reputation of the judicial process.” (Young, 128 Ill. 2d at 46.) Therefore, the rule applies only “when the question of guilt is close and the evidence in question might have significantly affected the outcome of the case [citations], or where the error alleged is so substantial as to reflect on the fairness and impartiality of the trial regardless of how closely balanced the evidence is [citations].” People v. Sanders (1983), 99 Ill. 2d 262, 273, 457 N.E.2d 1241.

To apply the plain error exception to the waiver rule, courts should first determine if the record plainly shows that an error affecting substantial rights was committed. (People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227.) This criterion is met in criminal cases when “the evidence is closely balanced or the error is of such a magnitude that the commission thereof denies the accused a fair and impartial trial or sentencing hearing. [Citations.]” (Young, 128 Ill. 2d at 47.) Thus, a reviewing court must first examine the record to find the strengths and weaknesses of evidence against the defendant, because “if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved.” People v. Carlson (1980), 79 Ill. 2d 564, 576, 402 N.E.2d 233.

Even though defendant did not raise this issue in his post-trial motion, we address the issue. As the prosecutor gave no ground for making the objections, and the trial court stated no grounds for sustaining the objections, the objections are to be treated as made and sustained on the grounds of relevancy. (Gale v. Hoekstra (1978), 59 Ill. App. 3d 400, 411, 375 N.E.2d 456.) It is thus clear that error here occurred. Defendant’s subjective feelings when pulled from the car, and whether defendant was afraid during the altercation, are matters which are relevant to the issue of whether defendant was justified in using the force that he used. The State argues that we should not review the issue as plain error because “the evidence was not closely balanced.”

To the contrary, we feel that the evidence was quite closely balanced in this case. At trial, the State and defendant presented conflicting stories about the altercation. The two versions of the story differed in important respects, including whether defendant got out of his car of his own volition or was pulled out of the car by Haller, and whether Haller strangled defendant or not. Both the State and defendant had a witness that corroborated their respective versions of the altercation. While the State stresses that Harris’ testimony was impeached in numerous respects, we note that Haller’s ability to perceive the events of that evening was suspect, as his alcohol concentration at the hospital registered .22, or more than twice the legal limit. (See Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1.) The evidence was closely balanced, and the evidence in question might have affected the outcome of the case. Due to the improper exclusion of defendant’s testimony, the jury convicted defendant without defendant being allowed to show his actual and subjective belief that he feared for his life or that he was in danger of great bodily harm. We hold that the exclusion of defendant’s testimony as to his state of mind is plain error which entitles defendant to a new trial.

The State also makes the argument that if error did in fact occur, the error was harmless. Errors will be held harmless when they could not reasonably have affected the result or contributed to defendant’s conviction. (See People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504.) For the reason that the exclusion of the evidence was plain error warranting a new trial, the exclusion of the evidence could have affected the result of the case and contributed to defendant’s conviction. Moreover, it has been held that the emphasis in closing argument on improperly admitted evidence is a consideration in determining whether harmless error has occurred. (See People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485.) Here, the prosecutor repeatedly emphasized the improperly excluded evidence during closing argument. The prosecutor told the jury that defendant was not justified in using the force defendant did unless defendant feared for his life. Not only did this emphasize the improperly excluded evidence, but it also was a clear misstatement of the law. Defendant could justifiably avail himself of the use of deadly force if he either reasonably feared for his life, or reasonably believed he was in imminent danger of great bodily harm. In conclusion, the error of excluding defendant’s testimony as to his state of mind at the time of the altercation was not harmless error.

Although not necessary to dispose of this case, we will address two further issues as they are likely to recur upon remand. Defendant further contends that the trial court erred in prohibiting defendant from eliciting testimony relating to Haller’s character for violence.

It is generally a defendant’s right to present evidence of a victim’s character for violence when the defendant alleges that he acted in self-defense against the victim. “[T]he reason for the rule is that such evidence tends to show circumstances confronting the defendant, the extent of his apparent danger, and the motive influencing him.” (People v. Robinson (1987), 163 Ill. App. 3d 754, 773, 516 N.E.2d 1292.) In this case, the trial court prohibited the questioning of Haller regarding his “fighting otherwise” statement at the hospital, and prohibited the questioning of both Haller and Ina Whalen as to whether Haller had been fighting or trying to fight the evening of the stabbing, before the altercation with defendant. The trial court disallowed such testimony on the grounds that evidence of the vietim’s violent character was admissible only in homicide cases and was irrelevant because, in this case, the evidence was apparent and undisputed that Haller was the initial aggressor.

Defendant correctly asserts, and the State does not now dispute, that evidence of a victim’s violent character may be admitted in battery cases where self-defense is at issue. (See People v. Jones (1976), 37 Ill. App. 3d 879, 882, 346 N.E.2d 389.) As to the issue of whether such evidence was irrelevant here because it was undisputed that Haller was the aggressor, the parties focus on the Illinois Supreme Court case of People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018. In Lynch, the court explained:

“A victim’s aggressive and violent character may tend to support a theory of self-defense in two ways. First, the defendant’s knowledge of the victim’s violent tendencies necessarily affects his perceptions of and reactions to the victim’s behavior. The same deadly force that would be unreasonable in an altercation with a presumably peaceful citizen may be reasonable in response to similar behavior by a man of known violent and aggressive tendencies. One can only consider facts one knows, however, and evidence of the victim’s character is irrelevant to this theory of self-defense unless the defendant knew of the victim’s violent nature ***.
Second, evidence of the victim’s propensity for violence tends to support the defendant’s version of the facts where there are conflicting accounts of what happened. In this situation, whether the defendant knew of this evidence at the time of the event is irrelevant.” (Lynch, 104 Ill. 2d at 199-200.)

The court concluded “[w]e hold that when the theory of self-defense is raised, the victim’s aggressive and violent character is relevant to show who was the aggressor, and the defendant may show it by appropriate evidence, regardless of when he learned of it.” Lynch, 104 Ill. 2d at 200.

The State argues that the trial court was correct in excluding the evidence of Haller’s aggressive or violent propensities, as it was undisputed that Haller was the aggressor, and, as it relates to this case, Lynch authorizes such evidence only for the purpose of showing who was the aggressor. Defendant, on the other hand, seizes the “conflicting accounts” language of Lynch in arguing that the evidence of Haller’s aggressive and violent character was relevant to support defendant’s version of what happened in this case and to support the conclusion that Haller remained the aggressor. It is clear that Lynch involved the question of who was the aggressor, and the court limited its holding to that issue.

It is not clear from a reading of Lynch, however, that such evidence may only be relevant, as the State argues, to who threw the first punch in this case. The evidence in this case reveals that there was a question as to who was the aggressor at the time of the stabbing, as there were conflicting accounts as to the circumstances of the stabbing. Moreover, although the parties have not discussed the case, there is authority which supports other use of such evidence. In People v. Gossett (1983), 115 Ill. App. 3d 655, 665-66, 451 N.E.2d 280, the court observed “[i]n addition to being probative of the question of aggression, the offers excluded here would have provided testimony which, if believed by the jury, would have also rendered reasonable the defendant’s use of deadly force against the deceased. It is one thing for the jury to accept the fact of the deceased’s aggression; it is another for the jury to find the defendant was justified in using the amount of force he did.” (Emphasis in original.)

The State does not contend that defendant has waived this issue. The State’s sole arguments are that Lynch does not authorize the evidence of Haller’s violent and aggressive character and that, if the exclusion of this evidence was error, it was harmless error. In this case, the exclusion of evidence of Haller’s violent propensities was error. Haller admitted, without objection, that he had tried to fight earlier in the evening. Defendant should have been allowed to develop this testimony, as it clearly was probative on the issues involved in this case. Defendant also should have been allowed to delve into Haller’s statement that he had been to the hospital for “fighting otherwise.” The only reasonable inference from this statement is that Haller had some history of engaging in fights. Had defendant been allowed to present this relevant evidence to the jury, it is possible that the jury would have given greater weight to defendant’s version of the events of that evening or concluded that defendant was justified in using the amount of force that he did. In light of the other errors that occurred at trial, it cannot be said that the trial court’s prohibition of testimony concerning Haller’s violent and aggressive character was harmless error.

The last issue that we discuss relates to the State’s use at trial of a piece of cloth which, as the trial judge observed and the State does not dispute, had “the effect of a flag,” the imprint being that of the Confederate flag. Attached to defendant’s motion for a new trial were the affidavits of two jurors who stated that they took the material to be a Confederate flag and thought it was introduced into evidence. This item was apparently recovered from Harris the evening of the occurrence and was shown to Officer Wright at trial, and placed in a clear plastic bag on the counsel table during trial. Defense counsel stated that she never received this item before trial, and did not observe it on the counsel table at trial, or observe it when it was shown to Officer Wright during Officer Wright’s testimony. The State asserts, and defendant does not in its briefs dispute, that the State, in response to pretrial discovery, answered that all items inventoried would be used at trial. The State, moreover, asserted at argument on defendant’s motion for a new trial that defense counsel had seen the “flag” prior to trial. Regardless, defendant makes no argument that any discovery violation entitles him to a new trial.

Defendant’s position on this issue is that the Confederate flag is a symbol of racial animosity, analogous to a swastika. Defendant argues “[t]his court has not hesitated to impose the sanction of a new trial where a prosecutor unfairly injects irrelevant and highly prejudicial issues of race into the trial process,” citing a number of cases which involve a prosecutor’s verbal references to a defendant’s or witnesses’ race when race was irrelevant to the issues at trial.

The State argues that, as defendant did not raise an objection to the presence of or use of the cloth at trial, the issue is now waived. The State also argues that the cloth was used for proper purposes at trial, namely that Harris saw defendant wipe the blood from his hands on the cloth, thereby discrediting Harris’ testimony they he did not see blood on defendant’s hands, and also to “prove the integrity of the inventory of evidence” at the scene and that the chain of custody was fulfilled.

For the purposes of resolving this issue, we need not decide that the use of the “flag” was error because it is a symbol of prejudice akin to a swastika. The reason we need not go so far is that a review of the record reveals the evidence to be completely irrelevant to the issues at trial. The State argues that at trial it attempted to discredit Harris’ testimony that he didn’t see defendant wipe his hands of blood, and seems to suggest that defendant may have wiped his hands or his knife on the cloth. The State never asked Harris if the cloth was used for this purpose. The State did not confront defendant with this contention. We have observed the cloth and did not see stains resembling blood. The State has not presented any evidence of physical tests or direct testimony to indicate that defendant wiped his hands or his knife on the cloth. Likewise, the State’s contention that the cloth was used to prove the integrity of the inventory process and show chain of custody is also not reflected in the record. Inventorying procedures were never challenged at trial, nor was the chain of custody challenged. Such were sufficiently established by the introduction of defendant’s knife into evidence.

In order for evidence to be admissible, the evidence must be relevant. (People v. Molsby (1978), 66 Ill. App. 3d 647, 657-58, 383 N.E.2d 1336.) Here, the cloth bearing the imprint of the Confederate flag was irrelevant, and its use at trial was error. While its use at trial may not, alone, have constituted reversible error, when coupled with the other errors at trial, it was not harmless.

Based upon the foregoing, we need not address the other issues defendant raises.

Accordingly, the judgment of the circuit court is reversed and remanded for a new trial.

Reversed and remanded.

McNAMARA AND LaPORTA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    TERRACOM DEVELOPMENT GROUP, INC., Plaintiff-Appellant, v. THE VILLAGE OF WESTHAVEN et al., Defendants-Appellees.
    First District (6th Division)
    No. 1-90-1054
    Opinion filed February 8, 1991.

      William D. Maddux & Associates, of Chicago (William D. Maddux, of counsel), for appellant.
    Mark H. Sterk, of Odelson & Sterk, of Evergreen Park, for appellee Village of Westhaven.
    Lord, Bissell & Brook and Klein, Thorpe & Jenkins, Ltd., both of Chicago (Hugh C. Griffin, Daniel J. Zollner, Nancy Shaw, and Dennis G. Walsh, of counsel), for other appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Terracom Development Group, appeals from an order of the circuit court of Cook County dismissing Terracom’s complaint against defendants as being duplicative of a pending Federal action.

Terracom is a real estate developing company. In the early 1970s, Terracom began planning the development of 35 acres of land in the Village of Westhaven (Village), now known as Orland Park, to occur in four phases: phase I, involving the “Hunter Subdivision,” 21 acres of private, single-family homes; phase 2, involving the “Hunter Apartment Complex,” 1.22 acres; phase 3, involving the “Pheasant Ridge” apartments, 9.23 acres; and phase 4, involving 6.5 acres of additional single family homes.

In January 1976, the Village’s board of trustees adopted an ordinance which authorized the execution of a preannexation agreement with Terracom in which the Village expressed its desire that Terracom develop the property as proposed. Pursuant to the agreement, the Village issued building permits for the single-family homes and plaintiff began construction. Terracom executed a contract in November 1975 with the Orland Park School District (School District) in which it agreed to pay the School District $44.57 per dwelling not to take any action to oppose Terracom’s development project. Terracom also relied upon two letters from the Orland Fire Protection District (Fire District), in which the Fire District confirmed that it could adequately protect the phase III development and approved the plans.

Terracom thereafter submitted to the Village a final plan for the apartments, which the Village’s planning commission approved on May 24, 1977, and on November 6, 1978, as in compliance with the agreement and Village ordinances. Terracom applied to the Village for building permit fees for the apartments in September 1978, and applied to the Illinois Housing Development Authority (IHDA) and the United States Department of Housing and Urban Development (HUD) for mortgage financing, mortgage insurance and section 8 rental subsidies for the Hunter and Pheasant Ridge apartments. Terracom alleged that after being notified of its application for section 8 rental subsidies in January 1979, as required by Federal law, the Village engaged in a course of conduct designed to prevent construction of the apartments, which included: refusing to approve final plans in March 1979, which the planning commission had previously approved; refusing to issue or calculate fees for building permits; and erroneously claiming that Terracom failed to comply with the ordinances and the agreement as its basis for refusal.

In August 1979, Terracom and its trustee, La Salle National Bank, sought a writ of mandamus in the circuit court of Cook County requiring the Village to approve the final plans and issue the building permits. In April 1980, the circuit court entered judgment for plaintiffs against the Village, finding that Terracom’s plans for the apartments fully complied with the agreement and the ordinances. The court ordered that Terracom was entitled to construct the apartments as proposed and was entitled to the issuance of building permits upon payment of appropriate fees and presentation of a loan commitment.

Although Terracom thereafter presented a loan commitment and permit fees to the Village, the Village did not issue the permits, claiming that the application was incomplete and that Terracom failed to pay the requisite fees. In June 1980, plaintiffs filed a petition for rule to show cause based upon the Village’s refusal to issue the permits. After a hearing, the parties entered into an agreed order in August 1980 requiring the Village to deposit the permits with the court, which the court would release pursuant to conditions in the order. Terracom alleges, however, that it was unable to obtain the requested financing commitment from IHDA and HUD because qf the Village’s conduct. The Village did not deposit the permits with the court, and in March 1982, plaintiff filed a motion for enforcement of the agreed order in the circuit court. In April 1982, the court ordered the Village to deposit the permits by May 11, 1982, which the Village failed to do. On May 17, 1982, the court entered an order stating that the order itself constituted the requisite building permits.

Terracom and J. Fred Creek, its partner in the Pheasant Ridge Complex, filed suit against the Village, the Fire District and the School District in November 1982, in the circuit court of Cook County. Defendants subsequently removed the action to the Federal court for the Northern District of Illinois in March 1983, where the case is presently pending.

Count I of this complaint alleged that the Village breached its contract with plaintiffs by refusing to issue building permits for the multifamily apartment units, and by engaging in conduct to prevent Terra-com from securing financial commitments for the development. Count II alleged that the School District breached its November 1975 contract with Terracom by sending letters to IHDA and a State representative opposing the development and claiming that Terracom did not notify or consult the School District about the development. Count III alleged that the Fire District sent a letter to the IHDA indicating that the apartment complex would be a fire hazard. By so doing, plaintiffs alleged that the Fire District breached its contract with the Village to provide services and also breached its representations to plaintiffs that the Fire District had approved the final plans for the development. Each count specifically referred to the two multifamily apartment units, Hunter and Pheasant Ridge. Counts I and II specifically alleged that defendants’ conduct delayed the closing on the financial commitments for the apartment complexes. Both counts I and II also alleged that defendants’ breach delayed the development of the single-family homes and phase IV and requested damages therefore. Count II does not specifically refer to the single-family homes.

On January 25, 1985, Terracom, along with Creek and Shell, who each had acquired an interest in the Pheasant Ridge apartments, filed a first amended complaint in the Federal action to add a negligence count. In February 1989, plaintiffs filed a second amended complaint to include a substantive due process claim, referring specifically to the apartment complexes. On March 31, 1989, 17 days before trial was set to begin, Terracom sought leave to file a third amended complaint in order to add counts for the damages to phases I and IV of the development. The district court denied plaintiffs’ motion in a memorandum order entered August 31, 1990, citing plaintiffs’ “unjustified and extreme tardiness” and the resulting prejudice to defendants. On the next day, Terracom filed the present suit in the circuit court of Cook County, seeking the damages which were precluded in the Federal action. The trial judge dismissed the action on March 9, 1990.

On appeal, Terracom contends that the trial court erred in granting defendants’ motion to dismiss pursuant to section 2 — 619(a)(3) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a)(3)). Terracom maintains that the State and Federal actions are not “for the same cause” because the State action seeks damages for phases I and IV of the development plan, while the federal action seeks damages for phases II and III. It also claims that even if the trial court properly applied section 2 — 619(a)(3) to this case, the court should have stayed, rather than dismissed, the action until disposition of the Federal case.

Under section 2 — 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(aX3)), a defendant may seek dismissal on the ground that “there is another action pending between the same parties for the same cause.” Our supreme court in Skolnick v. Martin (1964), 32 Ill. 2d 55, 57, 203 N.E.2d 428, 429, stated that two actions are for the same cause where “relief is requested on substantially the same state of facts.” Moreover, according to this court, “the crucial inquiry is whether the two actions arise out of the same transaction or occurrence [citation], not whether the legal theory, issues, burden of proof or relief sought materially differ between the two actions.” (Tambone v. Simpson (1980), 91 Ill. App. 3d 865, 867, 414 N.E.2d 533, 535.) The purpose of the two actions need not be identical; rather, there need only be a substantial similarity of issues between them. (People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 357 N.E.2d 534; Catcdano v. Aetna Casualty & Surety Co. (1982), 105 Ill. App. 3d 195, 434 N.E.2d 31; Tambone v. Simpson (1980), 91 Ill. App. 3d 865, 414 N.E.2d 533.) The trial court in its discretion decides whether to grant the motion (Kellerman v. MCI Communications Corp. (1986), 112 Ill. 2d 428, 493 N.E.2d 1045), and such decision will not be disturbed absent an abuse of discretion. Arthur Young & Co. v. Bremer (1990), 197 Ill. App. 3d 30, 554 N.E.2d 671.

We conclude that the trial court properly dismissed the action under section 2 — 619(a)(3).

Both the Federal and State actions involve the same operative facts and the same issues. Each action involves the same three agree-merits: Terracom’s agreement with the Village, Terracom’s November 1975 contract with the School District, and Terracom’s alleged agreement with the Fire District. Moreover, the conduct by defendants which allegedly constitutes the contract breaches is identical in both complaints. Both complaints allege that Terracom performed the acts required of it under the agreements. Finally, both complaints allege that defendants’ breaches caused Terracom to suffer extensive damages.

Indeed, the State and Federal pleadings recite virtually identical allegations. Paragraph 2 of the State complaint refers to a legal description of property, to which the Federal complaint also refers. Paragraph 3 of each complaint alleges the Village’s status as a municipal corporation. The substance of paragraphs 4, 5, and 6 of the Federal complaint, which concern Village officials who were defendants in the Federal, but not the State, action, does not apply and is, thus, absent from the State complaint. Paragraph 4 of the State complaint mirrors paragraph 7 of the Federal complaint, except that they refer to a 38-acre and a 10.45-acre parcel of property, respectively. After paragraph 4 of the State complaint, each paragraph of the State complaint is lifted verbatim from the Federal complaint. Indeed, paragraphs 5, 6, and 7 of the State complaint are identical to paragraphs 8, 9, and 10 of the Federal complaint. Paragraphs 10 through 38 of the State complaint are identical to paragraphs 11 to 39 of the Federal complaint. Finally, paragraphs 39 to 46 of the State complaint are identical to various paragraphs in counts III and IV of the Federal complaint. In sum, with a few exceptions, each allegation in the State complaint appears in the Federal complaint.

Terracom concedes in its brief that this instant action and the Federal action involve “the same operative facts,” but maintains that the two causes are not the same because they involve different phases of development, relying on People ex rel. Phillips Petroleum Co. v. Gitchoff. Gitchoff, however, is inapposite to the present matter.

In Gitehoff, the deceased’s administratrix filed a Federal Employers Liability Act (FELA) action in Madison County against Phillips and the railroad for injuries sustained when a tank car explosion killed decedent. Approximately one year later, Phillips filed suit in Macon County against the railroad seeking a declaratory judgment to establish ultimate liability and indemnity for any judgment for the same explosion. The railroad then filed a counterclaim against Phillips in the Madison County action, seeking indemnity. In October 1975, the Macon court granted Phillips’ motion to consolidate, from which interlocutory order the railroad unsuccessfully sought leave to appeal. The Madison court, however, refused to transfer the counterclaim to Macon County for consolidation. Phillips filed this original action for a writ of mandamus to require Madison County to comply with the Macon County court order to consolidate. The railroad responded that Macon County should have declined jurisdiction over Phillips’ suit in light of the pending Madison County FELA action.

The supreme court denied the writ, determining that the issues and proof in the indemnity action would differ “substantially” from those in the FELA action. The court concluded that section 48(l)(c) of the Civil Practice Act (recodified as 2 — 619(a)(3)) did not preclude the maintenance of both suits.

Gitchoff is clearly distinguishable from the present case because the Gitchoff court considered two pending cases which dealt with independent issues, one case regarding the insured’s liability and the other concerning the insurer’s duty to the insured. Indeed, the supreme court noted that the Madison County court would determine liability for decedent’s death, while the Macon County court would determine any right to indemnity between those defendants held liable. Although both causes stemmed from common facts, they reached distinct issues. By contrast, here the Federal and State courts would be required to address identical issues: whether the alleged contracts existed, whether defendants breached them and the extent of the damages, if any. We cannot find that these two actions are not “for the same cause” merely because they seek damages for different phases of the construction plan. The facts required to support each action are identical. Nor does it appear that the additional proof required to sustain the damages issue for the single-family homes and phase IV would create a “significant dissimilarity of either issues or proof between these cases.” Tambone, 91 Ill. App. 3d at 868, 414 N.E.2d at 535.

Terracom’s own admissions belie its argument that the two causes of action are not the same. In support of its third amended complaint, Terracom stated that it did “not seek to add either new parties or new claims. Plaintiff’s motion merely seeks to amplify the original claim and clarify an element of damages.” Moreover, at the hearing in Federal court, Terracom’s attorney stated:

“We went to State Court to seek a remedy that wasn’t as adequate as staying here. The defendants came in and said to the State Court Judge legitimately, this issue should have been over in the Federal Court as part of our other case.” (Emphasis added.)

Finally, in support of its motion to amend in Federal court, Terracom wrote:

“Defendants could well argue in a state court defense that plaintiff’s claim for damages should have been brought in this federal suit. Plaintiff, Terracom, as well as the Defendants would be put to the expense, after approximately six years of delay, of retrying the same factual case as is now pending in this court.”

The above statements indicate that during the pendency of this litigation, Terracom consistently maintained that the additional relief sought for phases I and IV through its amendment involved the same facts and issues as the original complaint. Terracom’s own admissions persuade us that this action is “duplicative litigation,” which the trial court appropriately avoided by the dismissal. A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252, 419 N.E.2d 23, 27.

Terracom also claims that even if the trial court properly applied section 2 — 619(a)(3), it should have stayed, rather than dismissed, this action until resolution of the Federal case. We disagree.

Our supreme court in A.E. Staley Manufacturing Co. v. Swift & Co. held that multiple actions based upon the same operative facts may be maintained when the trial court in its sound discretion so determines that both should proceed. Factors to consider in determining whether to stay an action under section 2 — 619(a)(3) include the following: comity, the prevention of multiplicity, vexation and harassment, the likelihood of obtaining complete relief in the foreign jurisdiction and the res judicata effect of a foreign judgment in the local forum. Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 447-48, 493 N.E.2d 1045, 1053.

After reviewing the record, we conclude that the trial judge conducted a thorough analysis, properly considered the applicable factors and acted within his discretion. At the March 3, 1990, hearing, the trial judge specifically found that the two actions involved “the same sequence of events arising out of the same series of negotiations, the same contract between the parties.” After concluding that section 2 — 619(a)(3) applied, the judge considered whether a stay would be an appropriate remedy. He examined the history of the litigation and the district court’s memorandum order, agreeing that the State action merely attempted to circumvent the district court’s order. He explicitly recognized that the district court ruled on the basis of untimeliness and prejudice to defendants. Thus, we find that Terra-com’s inability to obtain complete relief in the district court is based upon its own actions. Moreover, the considerations of comity and res judicata do not apply. Although Terracom’s attempt to prosecute the same cause in different forums may not be vexatious or harassment, it is prejudicial to defendants. Finally, based upon our conclusion that the actions involve the same facts and issues, a dismissal is a more appropriate remedy than a stay.

In light of the trial court’s reasonable analysis, we do not find an abuse of discretion in dismissing rather than staying this action. Accordingly, we decline to disturb the order granting defendants’ section 2 — 619(a)(3) motions. In view of this determination, it is unnecessary to consider the other reasons offered by defendants in support of dismissal.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and EGAN, J., concur.


author: JUSTICE O’CONNOR

text:
    LAS FUENTES, INC., et al., Plaintiffs-Appellees, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (1st Division)
    No. 1-90-2110
    Opinion filed February 11, 1991.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Ruth M. Moscovitch, and Thomas Dombai, Assistant Corporation Counsel, of counsel), for appellant.
    Siegel, Moses & Schoenstadt, Jenner & Block, and Greenburg & Hermann, all of Chicago (Morton Siegel, James L. Webster, Michael A. Moses, Richard G. Schoenstadt, John B. Simon, Joel T. Pelz, and Barry H. Green-burg, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Las Fuentes, Inc., and seven other plaintiffs challenged amendments to the City of Chicago’s (the City’s) liquor license ordinance requiring a special license to operate beer gardens, which were previously operated under an establishment’s general liquor license. The trial court entered a preliminary injunction against enforcement of the so-called “beer garden” ordinance..The City appeals. For the reasons below, we vacate the injunction and remand.

In the summer, many Chicago liquor establishments move their business outdoors to beer gardens, which allow patrons to enjoy the warm weather. But along with the ambience comes problems for the beer gardens’ neighbors: noise, late hours, unruly patrons. The problems were addressed by the City, however, through amendments to chapter 147 of the Chicago Municipal Code, which regulates the sale of liquor in the City. The amendments were adopted in November 1989 and took effect in the next licensing period, which began May 1, 1990. As amended, chapter 147 requires an establishment to obtain an additional license to operate a beer garden, which was previously operated under an establishment’s general liquor license.

Chapter 147 defines a “beer garden” as “the privately owned outdoor location adjacent to a premises licensed for consumption on the premises — incidental activity or as a tavern or club, where alcoholic liquor may be sold and consumed subject to the provisions governing beer garden licenses.” (Chicago Municipal Code §147 — 1 (1989).) Under chapter 147, an applicant for a beer garden license must serve written notice on all legal voters residing within 250 feet of the premises and furnish the department of revenue with the names and addresses of all persons notified. The applicant must also place a notice in the newspaper and on the premises, and notify the alderman of the affected ward. Once application is complete, there is a 21-day waiting period, in which the premises are inspected by the police, fire, and health departments.

After the 21-day waiting period, the application materials, along with any written objections submitted by neighbors, are reviewed by the local liquor control commissioner, who determines, in his discretion, whether to grant or deny the license according to the standards provided in chapter 147:

“The Local Liquor Control Commissioner may deny an application for a city liquor dealer’s license if the issuance of such license would tend to create a law enforcement problem, result in or add to an undue concentration of licenses, or have a deleterious impact on the health, safety or welfare of the community in which the licensed premises is located.” (Chicago Municipal Code, §147 — 4(h) (1989).)

The amendments to chapter 147 were made effective May 1, 1990, the beginning of the new licensing period.

After the amendments to chapter 147 were enacted, the City made three attempts to notify potential beer garden licensees. On February 1, 1990, the department of revenue notified all current liquor license holders of the amendments to chapter 147, enclosing “Supplemental Form A,” seeking information as to which licenses the licensee would seek for the new license period beginning May 1, 1990. A second notice and form A were sent March 5, 1990, to all current licensees, and a third notice was sent on March 19, 1990, to all licensees that had not returned a form A.

On June 7, 1990, eight establishments that had operated beer gardens under the old licensing system filed suit against the City challenging the constitutional validity of the so-called “beer garden” ordinance. Of the eight plaintiffs, three obtained beer garden licenses by June 12, 1990, three were denied licenses on other grounds, and two had not applied for licenses as of July 10, 1990.

The trial court issued a temporary restraining order enjoining enforcement of the ordinance and subsequently heard a motion for preliminary injunction. The trial court found that the new licensing procedure was arduous, constituted a partial revocation of the old license without proper due process safeguards, and allowed subjective evaluations for licensing without standards. The trial court further found that the ordinance violated equal protection by treating beer gardens differently from sidewalk cafes. The trial court entered the preliminary injunction on July 17, 1990, and denied the City’s motion for a stay of the order. The City appeals.

The preliminary injunction barring enforcement of the beer garden ordinance was entered in error, as Las Fuentes cannot succeed on the merits of its claim. Although the merits of Las Fuentes’ claim are not directly before this court on appeal, we may review the claims as a threshold matter, because the reasonable likelihood of success on the merits of the claim is a condition necessary to support a preliminary injunction. (See Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 793, 483 N.E.2d 999.) Here, Las Fuentes claimed that the beer garden ordinance failed to satisfy due process, violated equal protection, and was impermissibly vague. Those claims cannot withstand even superficial analysis, however, and accordingly, Las Fuentes failed to show a reasonable likelihood of success on the merits.

Las Fuentes first argues that because a beer garden license could be denied simply on the basis of application materials and inspections, without a hearing before denial, the beer garden ordinance violated due process. But Las Fuentes’ argument relies on the trial court’s erroneous finding that, because the old licensing scheme allowed operation of beer gardens under a general liquor license, the new licensing scheme requiring an additional license constituted a partial revocation of the general license.

Where legislation implicates a protectable right or interest in property, the affected party is entitled to reasonable notice and a meaningful opportunity to be heard. Here, the parties devote substantial ink to whether a liquor license constitutes property, but that issue is irrelevant. Although a liquor license is not property (Ill. Rev. Stat. 1987, ch. 43, par. 119), revocation of such a license must satisfy due process. There is no vested interest, however, in the renewal of a liquor license, thus nonrenewal of a license, or the denial of a new license, is not subject to due process. See Black Knight Restaurant, Inc. v. City of Oak Forest (1987), 159 Ill. App. 3d 1016, 513 N.E.2d 109; Two Kats, Inc. v. Village of Chicago Ridge (1986), 147 Ill. App. 3d 440, 497 N.E.2d 1314; City of Wyoming v. Illinois Liquor Control Comm’n (1977), 48 Ill. App. 3d 404, 362 N.E.2d 1080.

Here, the new licensing scheme did not contemplate the revocation of a valid liquor license, to be replaced by a new license and an additional beer garden license. Rather, the ordinance became effective on the date the new licensing period began, and compliance with the new licensing scheme was required when applying to renew licenses; Las Fuentes’ general license expired before the beer garden ordinance became effective. Thus, Las Fuentes was applying, under a new licensing scheme, for a renewal of its general liquor license, and for a new beer garden license, and neither application was subject to due process.

Las Fuentes next argues that because sidewalk cafes may continue to serve liquor outdoors under their general liquor license, the beer garden ordinance violates equal protection. But legislation does not violate equal protection merely by prescribing different treatment for different classes of individuals. Where legislation conceivably serves as a rational means to further a legislative purpose, it is valid. Legislation will be subject to further scrutiny only where it creates a suspect classification or affects a fundamental right or interest. Here, Las Fuentes can show neither a suspect class nor the implication of a fundamental right.

Las Fuentes and the other plaintiffs are beer gardens, commercial enterprises statutorily defined as establishments generating more than 50% of their gross revenues through the sale of liquor, outdoors on private land. No fundamental right or interest exists in the totally economic and commercial activity defining the classification. Further, the classification, which affects neither race, gender, nor religious, ethnic or national origin, cannot be called suspect. Accordingly, the beer garden ordinance should be upheld as long as it conceivably serves the legislative purpose.

The City sought to alleviate problems associated with people consuming liquor outdoors in the summer, created an ordinance defining establishments especially prone to those problems, and allowed their operation only after a determination that the problems would not be exacerbated. Clearly, the beer garden ordinance serves as a rational means to the legislative end. Las Fuentes attacks the rationality of the ordinance by pointing to the small differences between beer gardens and sidewalk cafes, but where the legislation affects no suspect class, the basis for the classification is irrelevant. The beer garden ordinance satisfies equal protection.

Finally, this court need not, and indeed should not, consider Las Fuentes’ vagueness argument. Las Fuentes contends that the beer garden ordinance, as enacted, creates an arduous application process, vague standards for granting beer garden licenses, and makes licensing susceptible to arbitrary decisions by the local liquor control commissioner. But, the beer garden ordinance meets the minimum rationality test; thus, the possibility that it might have been more artfully drafted, or might place beer gardens at a competitive disadvantage to sidewalk cafes, is not fatal to its constitutional validity. Further, the wording or mechanism of the ordinance is not an appropriate inquiry for the courts, because such scrutiny reaches the substance of the ordinance, a concern addressed more appropriately through the political process than the judicial process.

We hold that the trial court erred in entering the preliminary injunction because Las Fuentes’ substantive challenges to the beer garden ordinance were groundless. Las Fuentes may have raised valid objections to the drafting of the ordinance, but those objections are more appropriately addressed through the political process, and we note that Las Fuentes made no allegation that the ordinance was not properly enacted or Las Fuentes and the other plaintiffs were excluded from participation in the political process that created the ordinance. Accordingly, we vacate the preliminary injunction and remand.

Vacated and remanded.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. A.R. ROOSEVELTAUSE, Defendant-Appellant.
    First District (4th Division)
    No. 1-88-0249
    Opinion filed February 14, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Jack M. O’Malley, State’s Attorney, of Chicago (Howard Weisman, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, A.R. Rooseveltause, appeals from a decision of the circuit court finding that the State had not systematically excluded African-Americans from the jury at defendant’s trial. Defendant was convicted of the rape of a semi-comatose Caucasian female and sentenced to 30 years of imprisonment.

On appeal, defendant presents the following issues: (1) whether the trial court erred in finding that he had not established a prima facie case of purposeful discrimination; (2) whether the trial court erred in concluding that the State’s reasons for exercising its peremptory challenges were adequate; and (3) whether the trial court erred in denying him the opportunity to cross-examine opposing counsel.

We affirm.

Defendant was convicted of the rape of a semi-comatose Caucasian female. The rape took place at Oak Forest Hospital, where both the victim and defendant were patients. In People v. Rooseveltause (1987), 156 Ill. App. 3d 288, this court affirmed defendant’s conviction but remanded the cause to the trial court for a hearing to determine whether African-Americans had been systematically excluded from the jury on account of race pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.

The trial court, on remand, found that defendant had not established a prima facie case of discrimination. After making this finding, and although it was unnecessary, the trial court also had the State explain the reasons for its peremptory challenges. This latter mandate was for purposes of the record in the event this court reversed the trial court’s decision. The trial court also considered the fact that one of the assistant State’s Attorneys was of African-American descent. In conducting the Batson hearing, the trial court followed the two-step procedure as set forth in People v. Hooper (1987), 118 Ill. 2d 244. Defendant appeals from the trial court’s decision.

As a threshold issue, defendant contends that the trial court erred in following the first step in the two-step procedure outlined in Hooper. In Hooper, our supreme court issued a supervisory order directing the circuit court to conduct an expedited hearing to allow defendant to present evidence to substantiate his claim of the State’s alleged misuse of its peremptory challenges pursuant to Batson. The Hooper court stated:

“If the [trial] court finds that a prima facie showing of such discrimination has been made, the court is directed to determine whether or not there is a neutral explanation by the State for the exercise of the questioned peremptory challenges.” Hooper, 118 Ill. 2d at 244.

The burden, therefore, initially rests with defendant to establish a prima facie case of discrimination. In the event the court finds defendant has established his prima facie case, the burden then shifts to the State to give race-neutral reasons for its peremptory challenges. Defendant argues that the trial court, in the instant case, was without authority to make its initial finding that he had not established a prima facie case of discrimination.

Defendant bases this conclusion on the following language in People v. Rooseveltause (1987), 156 Ill. App. 3d 288, remanding this case to the trial court: “[W]e hold that Batson applies to the instant case and that defendant is entitled to a Batson hearing where the prosecutor may offer race-neutral explanations for his peremptory challenges.” (Rooseveltause, 156 Ill. App. 3d at 296.) Defendant interprets this directive as this court’s implicit finding that a prima facie case was established and that the sole remaining determination was whether the State could provide race-neutral reasons for its challenges.

However, defendant misconstrues this directive. We ordered that the case be remanded to the trial court for a Batson hearing. (Rooseveltause, 156 Ill. App. 3d at 296.) The fact that we elucidated the second step in the process by no means is meant to imply that the first step in the process may be eliminated in this case. The burden still rests with defendant to establish a prima facie case. This court did not relieve defendant of that burden. The trial court was correct in following the two-step procedure as set forth in Hooper. Moreover, we interpret Hooper as reiterating the principles set forth in Batson.

The first issue defendant raises is whether the trial court erred in finding that he had not established a prima facie case of discrimination. In Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, the United States Supreme Court set forth the following test to determine whether defendant has made a prima facie case of purposeful discrimination: (1) defendant must be a member of a cognizable racial group; (2) the State peremptorily challenged members from that racial group; and (3) these facts and “any other relevant circumstances raise an inference” of purposeful discrimination. Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723.

The trial judge makes the initial determination of whether the defendant has established a prima facie case. (People v. Evans (1988), 125 Ill. 2d 50, 66.) If the defendant is found to have established a prima facie case of purposeful discrimination, the burden shifts to the State to come forward with race-neutral explanations for the peremptory challenges in question. (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) The trial court will then have the burden to determine whether the defendant established a case of purposeful discrimination. (Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724.) A trial court’s finding that the defendant has not established a prima facie case will not be overturned on review unless the decision is against the manifest weight of the evidence. Evans, 125 Ill. 2d at 71.

In the instant case, defendant has met the first two requirements in establishing a prima facie case in that he is of African-American descent and the State exercised its peremptory challenges in removing from the venire members of defendant’s race. The remaining question, then, is whether the trial court in considering all of the “relevant circumstances” properly found that defendant had not established a prima facie case.

As illustrative of these “relevant circumstances,” the Bat-son Court stated that “a ‘pattern’ of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.” (Batson v. Kentucky (1986), 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723.) The level of black representation in the venire as compared to the jury was also cited as an example of a “relevant circumstance.” Batson, 476 U.S. at 93, 90 L. Ed. 2d at 85, 106 S. Ct. at 1721.

Our supreme court in People v. Evans (1988), 125 Ill. 2d 50, also cited examples of “relevant circumstances” taken from other jurisdictions including “whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic [citation]; the race of the defendant and victim [citations]; and the race of the witnesses [citation].” Evans, 125 Ill. 2d at 64.

Defendant, in arguing his prima facie case, stated that “the complainant is white and the defendant is black. The State exercised four peremptory challenges, all against black prospective jurors — which resulted in an all-white jury. This alone establishes a ‘prima facie case.’ ” We disagree. A prima facie case of discrimination may not, without more, be established by the number of blacks excluded from the jury. Evans, 125 Ill. 2d at 64.

The ramifications of racism are sometimes better understood by those who have been victims. The fact that one of the assistant State’s Attorneys was of African-American descent is of significance in the evaluation process, although not dispositive of this issue. (See People v. Mahaffey (1989), 128 Ill. 2d 388.) After carefully reviewing all of the relevant facts in this case, we do not find the trial court’s decision to be against the manifest weight of the evidence.

The trial court in making its decision noted that, unlike a court of review, it was in the unique position of being present during voir dire, had the opportunity to take copious notes, and observed the prospective jurors’ demeanor. The court then went on to hold: “In my heart of hearts and I so hold there is no prima facie basis established by the Defense of purposeful discrimination of blacks ***.” As the Batson Court stated:

“We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.” Batson v. Kentucky (1986), 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723.

The next issue defendant raises is whether the trial court erred in concluding that the State’s race-neutral reasons were adequate. Although there was no need to address this issue, as the trial court found that defendant had not established a prima facie case, the trial court requested that the State provide race-neutral reasons in the event the reviewing court reversed the court’s initial decision regarding the establishment of a prima facie case. The trial court, however, was not attempting to consolidate the Batson hearing into a one-step process nor does this conduct imply that a prima facie case must now necessarily be presumed. (See People v. Garrett (1990), 139 Ill. 2d 189; People v. Hope (1990), 137 Ill. 2d 430.) The trial court was simply requesting the reasons for the record. We find that analysis of this issue is unnecessary in light of the trial court’s finding that defendant had not established a prima facie case of discrimination. “[Tjhere [is] no need to assess the sufficiency of the State’s explanations, since the burden of providing them rests on the State only after a defendant has made a prima facie case.” People v. Garrett, 139 Ill. 2d at 202.

The final issue defendant raises is whether the trial court erred in denying him the right to cross-examine opposing counsel. Defendant wanted to cross-examine one of the prosecutors regarding his reasons for challenging two of the excluded venire persons. This request, however, was made after the trial court made its decision that a prima facie case had not been established by defendant and after the State, though unnecessarily, gave its reasons for excluding certain venire persons. Since this request was made after the trial court’s finding that no prima facie case had been made, it is not now necessary for this court to address defendant’s contention.

For the foregoing reasons, the decision of the circuit court is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KENDALL HACKMAN, Defendant-Appellee.
    First District (4th Division)
    No. 1-88-0688
    Opinion filed February 14, 1991.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Richard Cenar, and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
    William M. Saracco, of Palos Heights, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Kendall Hackman, was charged with driving under the influence of alcohol (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 501) and improper lane usage and violation of median (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 708). The State appeals the circuit court ruling granting defendant's motion in limine in which defendant asserted that, under the doctrine of collateral estoppel, the State is precluded from litigating the issue of whether he was driving or was in actual physical control of the vehicle in question as these issues had been previously litigated at his summary suspension rescission hearing.

On appeal, the sole issue presented for our review is whether the doctrine of collateral estoppel precludes the State from litigating a fact in defendant’s criminal trial that was previously determined in defendant’s favor during a hearing to rescind the summary suspension of his driver’s license.

We reverse.

The record reveals that on December 23, 1986, defendant was arrested and charged with driving under the influence of alcohol, improper lane usage and violation of median. At approximately 8:10 p.m. on the evening of December 23, Illinois State Police Trooper Steven E. Covey was called to the scene of an automobile accident in which personal injuries were sustained. The accident occurred in the vicinity of the intersection of Route 83 and Route 171 in Illinois. Defendant was identified as the party injured.

Defendant was immediately taken to Palos Heights Hospital for observation. At trial, Trooper Covey testified that defendant was “very glassy eyed, smelled strongly of alcohol *** [and] was quite combative toward the hospital personnel.” After making these observations, Trooper Covey came to the conclusion that defendant was under the influence of alcohol. This conclusion was also memorialized in Trooper Covey’s previously written report describing the incident.

At the hospital, defendant submitted to a blood test. The test revealed that defendant had a blood-alcohol concentration level of 0.169. It is a violation of the Illinois Vehicle Code to operate a motor vehicle when an individual’s blood-alcohol content is 0.10 or above. Ill. Rev. Stat. 1985, ch. 95%, par. 11-501. „

Defendant was subsequently arrested and pursuant to section 11— 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95%, par. 11 — 501.1), his driver’s license was suspended for a period of three months. Defendant then filed a request seeking to have the summary suspension of his driving privileges rescinded.

A rescission hearing was held on February 27, 1987. After the State rested, defendant moved for a directed verdict on grounds that there was no evidence introduced that he was driving the vehicle in question or that he was in actual control of the vehicle. The court granted defendant’s motion for a directed verdict and rescinded the summary suspension of his driving privileges.

Subsequently, defendant filed a motion to dismiss his driving-under-the-influence charge on the basis of collateral estoppel. Defendant reasoned that since there was no evidence found at the rescission hearing that he was in fact driving or was in physical control of the car, the State could not now relitigate those issues at his criminal trial. Defendant’s motion to dismiss was denied due to his filing of an improper motion. The court, however, granted defendant leave to file another motion.

Thereafter, defendant filed a motion in limine asserting the same arguments he had made in the previously dismissed motion. The trial court granted defendant’s motion in limine, finding that the doctrine of collateral estoppel barred relitigation of the “driving” issue from defendant’s criminal trial. It is from this decision that the State now appeals.

“Collateral estoppel '*** stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ ” (People v. Grayson (1974), 58 Ill. 2d 260, 263, quoting Ashe v. Swenson (1970), 397 U.S. 436, 443, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, 1194.) The doctrine applies to criminal as well as civil cases. People v. Stice (1988), 168 Ill. App. 3d 662, 664.

A summary suspension rescission hearing is tantamount to an administrative hearing rather than part of a criminal proceeding. (People v. Flynn (1990), 197 Ill. App. 3d 13, 17; People v. Stice (1988), 168 Ill. App. 3d 662, 664.) The scope of a summary suspension hearing is limited to the determination of the following issues:

“(1) [Wjhether the person was placed under arrest; (2) whether the arresting officer had probable cause to believe that the person was driving while under the influence; (3) whether the person refused to take a chemical test; and (4) whether the person failed a test to which that person submitted.” People v. Moore (1990), 138 Ill. 2d 162, 167.

Ill. Rev. Stat. 1985, ch. 95V2, par. 2 — 118.1(b).

Our supreme court in People v. Moore (1990), 138 Ill. 2d 162, recently decided the issue of whether determinations made in a summary suspension hearing may be used to collaterally estop the litigation of a question at a later criminal trial. Prior to this decision, the majority of the districts of the Illinois Appellate Court found that collateral estoppel could not be used to preclude relitigation of an issue that had previously been decided at a rescission hearing. (See People v. Flynn (1990), 197 Ill. App. 3d 13; People v. Filitti (1989), 190 Ill. App. 3d 884; People v. Stice (1988), 168 Ill. App. 3d 662.) The appellate court in People v. Moore (1989), 184 Ill. App. 3d 102, was the only panel that had reached a contrary decision.

Our supreme court, in reversing the Moore appellate court decision, first acknowledged that although the distinction between the functions of a suspension hearing in a driving-under-the-influence case and a preliminary criminal hearing was slight, there was still a difference in the two procedures. Moore, 138 Ill. 2d at 169.

The court explained that the legislative purpose of license, suspension hearings was to provide an expeditious means of having a defendant’s case heard in the context of an extremely limited scope. (People v. Moore (1990), 138 Ill. 2d 162, 169.) In finding that the doctrine of collateral estoppel did not preclude the litigation of certain issues previously decided at the defendant’s suspension hearing, the court stated:

“[I]f these proceedings were given preclusive effect, it would render meaningless this legislative purpose. That is, the practical effect would be that the State or municipality could not rely on the sworn police report at these proceedings but, rather, would be required to have the arresting officer, and other witnesses, testify. The goal of conducting swift hearings for the sole purpose of determining whether a court has sufficient reason to rescind summary suspension of a motorist’s driving privileges will be thwarted. Given this probable result, and the fact that no injustice will be done to either party by declining to give preclusive effect to these license suspension hearings, we decline to do so.” Moore, 138 Ill. 2d at 169.

We follow our supreme court in Moore in holding that the doctrine of collateral estoppel does not apply so as to preclude the State from litigating the issues at defendant’s criminal trial that had been previously decided at defendant’s rescission hearing.

For the foregoing reasons, the decision of the circuit court is reversed.

Reversed.

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


author: JUSTICE McMORROW

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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEVEN OTT, Defendant-Appellee.
    First District (4th Division)
    No. 1-89-2535
    Opinion filed February 14, 1991.

      Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
    William Hedrick, of Skokie, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant was charged by indictment for the murder of his girlfriend. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a).) He filed a motion to quash his arrest and to suppress certain inculpatory statements he made. Following an evidentiary hearing, the trial court determined that the police had probable cause to arrest defendant at the scene of the crime. The trial court also found that defendant had consented to police officers’ search of defendant and his personal belongings, at the scene, for drugs and weapons. However, the court determined that defendant had not consented to the officers’ reading of an inculpatory note that had been written by defendant, which the officers discovered during their consensual search of defendant’s personal effects. The trial court also concluded that police officers’ seizure of the note tainted subsequent incriminating statements made by defendant during police questioning, because defendant had been confronted with this note during the interrogation. Based upon these determinations, the trial court suppressed the note written by defendant as well as his oral and written inculpatory statements to authorities. The State appeals from the trial court’s ruling.

We conclude that the police officers had probable cause to arrest defendant before the officers discovered the note written by defendant that was obtained during the officers’ consensual search of the defendant for drugs or weapons. We also determine that because there was probable cause to arrest defendant at that moment, the officers’ reading of the note constituted a lawful search and seizure of defendant’s personal effects for incriminating evidence that defendant might otherwise destroy or conceal. As a result, the trial court erred when it suppressed defendant’s note and his subsequent inculpatory statements during police questioning. Accordingly, we reverse and remand for further proceedings.

The record contains the following pertinent facts. On and prior to May 27, 1988, defendant lived with his girlfriend, H.S., in a unit of a trailer park in Des Plaines. According to defendant, he and H.S. had a heated argument in the late hours of May 27 during which defendant accused her of infidelity. At approximately 12:30 a.m. on May 28, defendant left the trailer, drove his automobile to a nearby park, and slept in the vehicle until 11:30 a.m., when he returned to the trailer. Upon entering the residence, defendant discovered H.S. lying on a mattress. She appeared to be dead. Defendant went to his mother’s trailer, which was located nearby, and authorities were summoned to the scene. Local paramedics discerned that H.S. may have died of suspicious causes and alerted the Des Plaines police department.

Officers Cheryl O’Malley and Bernie Whiter of the Des Plaines police department testified that when officers arrived at the scene, it appeared that H.S. might have been sexually assaulted and murdered. She was lying on her back across two mattresses on the floor and her nightclothes were pulled up. There was no significant sign of blood loss from the victim on the mattress or anywhere else in the trailer.

Although the door to the defendant’s trailer had both a key lock and a chain lock, there was no sign of forced entry into the trailer through the door or through any windows in the trailer. When the police asked defendant his whereabouts during the preceding evening, he gave the account set forth above. Defendant appeared highly agitated and erratic while he spoke with the police officers. Because his behavior was causing a group of people to gather at the scene, officers suggested that defendant sit in the back seat of a police vehicle, and he agreed. Defendant sat in the car with his legs outside the vehicle and his feet on the ground. He repeatedly stated that he could not understand “why they had to rape *** and kill” the victim and that he had “loved” the victim. Defendant also repeatedly pounded his head against a metal grate inside the police vehicle.

Because of defendant’s continued agitation, officers suggested that further discussion take place after defendant had been driven to the station in a police vehicle. Defendant assented to this suggestion. Defendant was then informed that, as a routine matter, Officers O’Malley and Whiter would have to search defendant and his personal belongings for drugs or weapons before he could be taken to the station in a police vehicle. Defendant agreed to this search. Officers O’Malley and Whiter testified that they did not believe defendant was under arrest at this time, and that if defendant had wanted to leave, there would have been no lawful reason to prevent him from doing so.

The two officers proceeded to search defendant’s personal effects. As defendant handed his wallet to the officers, a piece of paper fell from the wallet to the ground. Officer O’Malley and defendant both reached down to pick up the piece of paper. However, Officer O’Malley was able to do so before defendant reached the paper. Because of its weight, size, and configuration, Officer O’Malley believed that the paper probably did not contain drugs or a weapon. Officer O’Malley testified that as she was handing the paper to Officer Whiter, defendant attempted to “grab” it from her. He was unsuccessful, and Officer Whiter took possession of the document. Officer Whiter unfolded the paper to determine that neither a razor blade nor drugs were contained therein. The officer then read part of the contents of the note written on the paper. Based upon what he read, Officer Whiter determined that there was probable cause to arrest defendant for the murder of his girlfriend. However, Officer Whiter said nothing at this time to the defendant regarding defendant’s involvement in the murder, the contents of the note, or that defendant might be under arrest for the crime.

Thereafter, Officers O’Malley and Wolter searched, without incident, the remainder of defendant’s personal belongings and performed a pat-down of defendant’s person. All of defendant’s personal effects, with the exception of the note, were returned to defendant after the search. The note was retained in police custody. Defendant was then transported to the local police station. The entire substance of defendant’s note was read by the police before additional questioning of the defendant took place.

During interrogation at the station, defendant initially denied involvement in his girlfriend’s murder. When Officer Wolter asked defendant to explain certain portions of the note that had been recovered from defendant at the scene, defendant admitted that he had strangled his girlfriend. Thereafter, defendant gave an oral and written inculpatory statement to authorities.

In its ruling on the defendant’s motions to quash arrest and suppress statements, the trial court determined that the police officers had probable cause to arrest the defendant for the murder of H.S. based on the totality of the circumstances known to the officers at the scene of the crime. On this basis, the court denied defendant’s motion to quash his arrest. However, the trial court also concluded that defendant had not consented to Officer Wolter’s reading of the note that fell from defendant’s wallet, and that this document should therefore be suppressed from evidence at defendant’s trial. In addition, the court found that because the defendant’s inculpatory statements at the station were obtained after defendant was confronted with the contents of the note, defendant’s statements during the police station interrogation should also be suppressed. The State’s timely appeal followed.

The State argues on appeal that the officers had probable cause to arrest defendant before the officers read the note obtained from defendant at the scene of the crime. The State contends that because there was probable cause to arrest defendant at that time, the officers’ subsequent reading of the note was not unlawful. On this basis, the State asserts that the defendant’s note, as well as his inculpatory statements, should not have been suppressed.

The United States and Illinois Constitutions prohibit police authorities from performing a warrantless, nonconsensual search or seizure of a private citizen’s property unless there is probable cause to justify an arrest of the citizen. (U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6.) Probable cause is defined as reasonable grounds to believe that the defendant has committed a criminal offense. (People v. Gacho (1988), 122 Ill. 2d 221, 235, 522 N.E.2d 1146; People v. Cabrera (1987), 116 Ill. 2d 474, 485, 508 N.E.2d 708; People v. Neal (1985), 111 Ill. 2d 180, 193, 489 N.E.2d 845; People v. Allen (1990), 202 Ill. App. 3d 487, 490, 559 N.E.2d 1145; Ill. Rev. Stat. 1987, ch. 38, par. 107 — 2(l)(c).) Whether there is probable cause depends upon the totality of the circumstances known to the officers at the time of the search and seizure, bearing in mind their obligation to deter crime and apprehend offenders, and disregarding formalistic technicalities or analytical hindsight. People v. Foster (1987), 119 Ill. 2d 69, 83-84, 518 N.E.2d 82; People v. Stout (1985), 106 Ill. 2d 77, 86-87, 477 N.E.2d 498; People v. Exline (1983), 98 Ill. 2d 150, 154, 456 N.E.2d 112.

When there is probable cause for an offender’s arrest, it is not unlawful for authorities to undertake a nonconsensual, warrant-less search and seizure of property upon or nearby the accused, in order to prevent his destruction or concealment of incriminating evidence. (Cupp v. Murphy (1973), 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000; People v. Hadley (1989), 179 Ill. App. 3d 152, 158, 534 N.E.2d 395; People v. Franklin (1987), 159 Ill. App. 3d 923, 930-31, 512 N.E.2d 1318; see also Chimel v. California (1969), 395 U.S. 752, 763, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040; People v. Day (1990), 202 Ill. App. 3d 536, 560 N.E.2d 482; Ill. Rev. Stat. 1987, ch. 38, par. 108 — 1.) Applying this precedent to the case at bar, it is necessary to determine when there was probable cause to arrest the defendant.

The trial court denied defendant’s motion to quash his arrest because it determined that all of the circumstances known to the officers at the scene provided probable cause to arrest the defendant. Generally, the trial court’s disposition of a motion to suppress will be upheld absent an abuse of discretion. (People v. Murray (1990), 137 Ill. 2d 382, 387, 560 N.E.2d 309; People v. Evans (1988), 125 Ill. 2d 50, 71, 530 N.E.2d 1360.) Based upon the totality of the circumstances at the scene of the crime as appearing in the record, we conclude that the officers had sufficient probable cause to arrest defendant for the murder of his girlfriend before the officers began their search of defendant’s personal effects.

Defendant admitted to the Des Plaines police officers that he lived with the victim in the trailer and that he had a heated argument with her the night of the incident. In addition, defendant was highly agitated and erratic with officers at the scene. There were no signs of forced entry into the trailer where the victim had been murdered, and no evidence to corroborate defendant’s account that he had spent the night, after he left the trailer, sleeping in his car until 11:30 the following morning.

The circumstance that there was no forced entry into the trailer indicated that “defendant was part of a relatively small class of people who could have had the opportunity to commit the murder[ ].” (People v. Montgomery (1986), 112 Ill. 2d 517, 526, 494 N.E.2d 475; see also People v. Hunley (1989), 189 Ill. App. 3d 24, 35, 545 N.E.2d 188; People v. Davis (1981), 98 Ill. App. 3d 461, 424 N.E.2d 630.) His heated argument with the victim late in the evening of May 27 demonstrated that defendant may have had a motive to kill her. His highly erratic behavior at the scene revealed a possible consciousness of his guilt in the murder of his girlfriend. The lack of corroboration that defendant had slept in his vehicle until 11:30 a.m. also indicated that defendant had the opportunity to kill the victim. All of these circumstances, considered as a totality, provided reasonable ground to believe that defendant had murdered H.S. See People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228.

Because the officers had probable cause to arrest defendant before they began their consensual search of his personal belongings for drugs or weapons, the officers could lawfully perform a nonconsensual search and seizure of items on or near defendant, in order to prevent his destruction or concealment of incriminating evidence. (Cupp, 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000; Hadley, 179 Ill. App. 3d 152; Franklin, 159 Ill. App. 3d 923.) Consequently, there was no constitutional infirmity in the officers’ seizure of the note, their reading of the note, and their use of the note in subsequent questioning of the defendant. The trial court erred when it suppressed the defendant’s note and the subsequent inculpatory statements he made to authorities during interrogation at the police station.

Defendant argues that he was not under arrest before the officers read the contents of the note that fell from defendant’s wallet, because the officers testified that they did not believe defendant to be under arrest at that moment. However, the proper inquiry is whether there was probable cause to arrest the defendant before the contents of the note were read by the officers, and the officers' subjective views are not controlling or dispositive. See, e.g., People v. Hoskins (1984), 101 Ill. 2d 209, 213-14, 461 N.E.2d 941; People v. Anderson (1988), 169 Ill. App. 3d 289, 297, 523 N.E.2d 1034.

The case cited by defendant does not conflict with our conclusion that there was probable cause to arrest him before the officers began to search his personal belongings. In People v. Thomas (1984), 123 Ill. App. 3d 857, 463 N.E.2d 832, the appellate court determined that the defendant’s arrest was not supported by probable cause, because the police believed that the victim had been dead only three days, while the defendant had last been seen with the victim six days prior to the discovery of her death. In the instant cause, there was no three-day gap in time between defendant’s departure from the trailer, any estimated time of the victim’s death, or the discovery of his girlfriend’s body in the trailer.

Defendant also asserts that the State waived any argument that the officers had probable cause to arrest defendant at the scene, because this claim was not made to the trial court. Even assuming arguendo that this claim was waived, we may nevertheless consider the merits of the State’s argument on appeal. See, e.g., People v. Hoskins (1984), 101 Ill. 2d 209, 219, 461 N.E.2d 941.

In light of this disposition, we do not address the parties' arguments with respect to whether the defendant consented to the officers’ reading of defendant’s note.

For the reasons stated, the order of the circuit court of Cook County that suppressed defendant’s inculpatory statements is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

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