text:
    LINDA CNOTA, Plaintiff-Appellant, v. PALATINE AREA FOOTBALL ASSOCIATION et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—90—0861
    Opinion filed March 20, 1992.

      Eugene F. Keefe, of Roddy, Power & Leahy, Ltd., of Chicago (Alan D. Kalinoski, of counsel), for appellant.
    Dale W. Bruckner, of Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., of Wheaton, for appellees.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff Linda Cnota, a waitress, fell and injured herself when she allegedly tripped over coats dropped on the floor by customers, a group of young football players with their families. Plaintiff filed a personal injury action against defendant Palatine Area Football Association (PAFA or the Association) and against defendant John Rudolph, president of PAFA, and defendant Linda Beckman, the mother of one of the team members as “representatives” of the Association. The trial court entered summary judgment in favor of defendants, and plaintiff appeals from that judgment.

The complaint, filed December 23, 1988, alleges that on November 15, 1987, plaintiff worked as a waitress at a restaurant named Ye Olde Town Inn. The Palatine Area. Football Association, an unincorporated voluntary association, had “reserved a portion” of the restaurant for its “sole use.” The complaint alleged that defendants Rudolph and Beckman were “representatives of that unincorporated voluntary association.”

The complaint alleges further that “defendants undertook to voluntarily change the configuration of the tables and chairs and other restaurant equipment for their sole use.” Defendants also “undertook to voluntarily place their coats and other garments on or about the aforesaid chairs and equipment.” Defendants violated their “duty to utilize ordinary care in the performance of these undertakings” and were negligent in the following manner:

“a. Failed to arrange the tables and chairs and other equipment so as to allow a clear and unimpeded path for Plaintiff to walk through in performing her duties;
b. Failed to arrange the tables and chairs and other equipment so as to allow Plaintiff a clear line of sight to clothing and other garments which were on the floor alongside the chairs and tables;
c. Failed to properly hang or support their clothing and other garments so that they would not fall to the floor in a fashion which could not be seen or detected by Plaintiff;
d. Failed to pick up clothing and other garments from the floor after the aforesaid clothing had fallen in a fashion which could not be seen or detected by Plaintiff; [and]
e. Failed to warn Plaintiff of the hazardous and dangerous condition present due to the presence of hidden clothing and other garments on the floor.”

The complaint alleges further that plaintiff “could not and did not see the aforesaid clothing *** which had fallen to the floor in the narrow corridor created by Defendants due to their voluntary rearrangement of the tables and chairs of Plaintiff’s employer.” Plaintiff, therefore, “tripped and fell over the aforesaid hidden clothing” and was injured.

In its answer, filed March 3, 1987, defendants responded to the allegation that PAFA was a voluntary association and the individual defendants were “representatives” of the Association:

“Paragraph 2 merely states a legal conclusion and therefore no response is required thereto. If any response is required Defendant denies the allegations in paragraph 2 and each of them.”

On May 23, 1989, defendants filed a motion for summary judgment, arguing that the Association could not be held liable for torts of individuals when it had no control over their acts. Attached to defendants’ motion for summary judgment was an affidavit of Christopher Childers, the team’s coach, stating that Childers was never an officer or employee of PAFA. Childers stated further that the pizza party “was not a pizza party given on behalf of the Association.” Instead, the pizza party “was an informal gathering organized by some coaches and parents of members of the White Team, a single team belonging to the Association.” Childers also stated that “[n]o officer or representative of the Association organized the pizza party on the Association’s behalf.” The affidavit continued:

“Only some of the White Team members were present at the pizza party along with their coaches, as well as some brothers, sisters, parents and friends.
Each parent of a team member paid for pizza and refreshments consumed by himself and his children. The Association made no payment or contribution toward the purchase of same.
The Association did not organize, sponsor, or in any way become involved in making arrangements for the subject pizza party.”

Beckman testified at her deposition that she volunteered to arrange a party for the end of the season.

“A. Well, in ’86 I knew the kids had a party, you know, the team had a party. So one of the mothers was coming around — now we’re talking ’87 — *** [and] I asked her if she heard of anything about if we were having any kind of a party for the boys, and she said no.
So then I went up to Chris Childers and I asked him if there was going to be any party because none of us had heard anything, and he said I really haven’t had time to do it. And I said would you like me to do it? And he said would you mind? And I said no, and that was it.
Q. And what did you do?
A. Well, it seemed like the kids had a good time at the Olde Town Inn from the year before when we went. It seemed like it went real smooth, so I went back there.”

Beckman testified that shortly before the party, she went into the restaurant and spoke with plaintiff, and told plaintiff that “the football team” wanted a party “like last year.” Plaintiff gave her the manager’s telephone number. Beckman later telephoned the manager and said she wanted “to have a football party at his place like they had last year.” The manager referred her to the head waitress. Beck-man later telephoned the head waitress.

“A. And I spoke to her about it. I asked her her suggestions on it, if they can accommodate about 60 to 70 people, because she was asking me how many people; and I told her we were all paying our own tab. ***
* * *
Q. *** Do you recall if you made a reservation in any specific name?
A. No.”

Beckman testified that on the day of the party, she arrived at the restaurant with her son. The bartender told Beckman that “I had to supervise the children — there had to be an adult supervision [sic] in the bar area with the children.” At one point, Beckman asked plaintiff “if we could have it so the team could sit together like they did last year, the previous year, and she said yes.” Then plaintiff “and one of the cooks I guess came out and they rearranged the table[s].” Beckman did not see anybody else assist them in the rearranging.

Beckman testified that approximately 60 people attended, 25 of whom were the team members. Beckman remained in the entryway, “[w]atching the kids in the bar area.” Beckman explained: “There’s a cement floor and it’s slippery, and that’s why the bartender asked me to supervise because they would trip and fall, and they didn’t want them running around.” The participation trophies were given out, taken from a box which the coach had with him, and the coach was given a gift from the team members.

Beckman testified that if one of the boys misbehaved at the party, “[h]opefully the parents would [intervene] if they were there with their children.” If the parents were not there, Beckman herself would say something.

Beckman did not see plaintiff fall on November 15, 1987. When she was told about the fall, Beckman “ran from the bar area into where she was at.” Beckman asked plaintiff what happened, and plaintiff “said she tripped.” She did not indicate what she tripped on. “My understanding is she was serving drinks, and she tripped on the leg of a chair and fell back, hit the wall and fell.”

Beckman testified that coats and garments were hung up on a “long wooden coat fixture, you know, with the hooks on it like this (indicating) and people hung up their coats up there.” She does not recall whether any coats were put on the backs of chairs. She did not see any coats or garments on the floor.

Beckman testified further that she was not an officer in PAFA. She did not know when the Association began; its purpose; its structure; whether it had employees; whether it existed on a year-round basis; whether it was affiliated with other associations; when it had meetings; how it was funded; who the officers were; or what its activities were. No “representative” of the Association was at the party. “There was just the coach, the team, and the parents and friends or other family members.”

Beckman also testified that at some point after the accident, plaintiff telephoned her. “She said she was going to sue the Olde Town Inn and she needed witnesses,” and therefore wanted the coach’s name and phone number.

In her response to the motion for summary judgment, plaintiff relied upon the deposition of Joseph H. Chambers, the current president of PAFA. Chambers testified that the purpose of PAFA was to “provide a youth football program for children in the Palatine area community.” The PAFA provides athletic equipment to the boys. Chambers did not know Beckman. She never played a role with PAFA. “She has played no role. In other words, I don’t know who the person is.” PAFA had never sanctioned any player for misbehaving at an outing such as an end of the season party. Chambers was not aware that the November 15, 1987, pizza party was being held. No officers were present at the party.

Chambers testified that PAFA commonly uses its funds to purchase annual player participation awards for distribution to players; that PAFA commonly gives the player participation awards to all head coaches for distribution; and that PAFA knew that these awards were typically given to the players by the coach, and that “the time, nature and site of this event is left to the discretion of the individual coaches.” Chambers also testified that commonly the awards are given at events or parties similar to the September 15, 1987, pizza party “at restaurants and are organized by coaches or volunteer parents”; that commonly the awards bear the name of PAFA; and that commonly the team players, coaches and parents wear PAFA garments at such parties. Chambers testified further that each child pays for the cost of the plaque. “It’s part of his registration fee. He gets a participation plaque.” No other awards are given.

In Chambers’ affidavit, he stated that PAFA had never been requested to, and did not have the authority to, “sanction, authorize, organize, sponsor, or otherwise have any involvement with any post season party, gathering or activity undertaken by any team or teams within the PAFA. ”

Plaintiff also relied upon her own affidavit, which states that prior to November 15, 1987, she was contacted at work by Linda Beckman. At that time, Linda Beckman said that she was a parent of “one of the players in the PAFA.” Beckman told plaintiff “that she wanted to schedule another party similar to the party held by the [PAFA] at the same restaurant the preceding year.” Beckman stated that the “party was for” PAFA.

Plaintiff’s affidavit states further that the restaurant manager told plaintiff that Beckman “had contacted him and finalized the reservations and requested that the reservations for the party be in the name of the ‘Palatine Area Football League.’ ”

Plaintiff also states in her affidavit that on November 15, 1987, Beckman arrived at the restaurant and “told me that she was at the restaurant on behalf of the” PAFA, and that “she was going to stand in the foyer and direct members of the [PAFA] into the appropriate room for the party.” Plaintiff observed many of the people at the party wearing PAFA jackets, and saw awards with the PAFA name printed on them sitting on a table.

On February 27, 1990, the trial court granted defendants’ motion for summary judgment.

Opinion

Plaintiff contends that the trial court erred in entering summary judgment for defendants because genuine issues of material fact remain regarding the relationship between PAFA, Coach Childers and Beckman. Summary judgment is proper where the pleadings, affidavits and depositions on file establish that there is no genuine issue of material fact. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005; Campbell v. Haiges (1987), 152 Ill. App. 3d 246, 249, 504 N.E.2d 200.) In deciding a summary judgment motion, the trial court may not weigh the evidence. (Miller v. Smith (1985), 137 Ill. App. 3d 192, 198, 484 N.E.2d 492 (“While the trial court apparently believed that the evidence submitted by plaintiffs was more probative than that preferred by defendants, such weighing and appraising of the evidence is improper on a summary judgment motion”); Fletcher v. Boxx (1973), 10 Ill. App. 3d 928, 295 N.E.2d 248.) There is no genuine issue of material fact where there is no dispute as to the material facts and reasonable persons could not draw different inferences from the facts. Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 491 N.E.2d 803; Zanzig v. H.P.M. Corp. (1985), 134 Ill. App. 3d 617, 480 N.E.2d 1204.

Generally, an association is not liable for the torts of its members when it has no control over the members’ acts.

“An association may not be held liable for torts of a member when it has no control over his acts ***. Also there is no liability for injuries suffered by a third person when the association has no control over the operation of the premises where injury occurred.” 7 C.J.S. Associations §38, at 88 (1980).

Here, the PAFA bylaws indicate that Childers, as a coach, was a “member” of the Association. However, PAFA had “no control over” the coach’s choice of the location where he would distribute the plaques. Chambers testified that the coaches could hand out the plaques anywhere; for example, at the coach’s home, at a community center, at a pizza party, at a horseback riding party, or at a local playground. “The list goes on and on and on. *** [I]t’s really up to the coach’s discretion how he disseminates them.” The bylaws gave PAFA no authority to dictate the means of distribution of the plaques and no authority to dictate any decisions related to an end-of-the-season party. PAFA also had no control over Beckman’s request to plaintiff that the chairs and tables be rearranged since PAFA had “no control over the operation of the premises where the injury occurred.”

Plaintiff argues, however, that the dinner was “organized and arranged by agents or representatives of the” Association. Unlike Childers, Beckman was not a “member” as defined by the PAFA bylaws. Thus, for Beckman’s negligence to be imputed to PAFA, Beck-man would have to be an agent or representative of PAFA.

While the existence of an agency relationship is generally a question of fact, it becomes a question of law where the parties’ relationship is so clear as to be undisputed. (Perkinson v. Manion (1987), 163 Ill. App. 3d 262, 516 N.E.2d 977; In re Estate of Rice (1985), 130 Ill. App. 3d 416, 473 N.E.2d 1382.) We believe that under the facts presented here, the relationship between Beckman and PAFA is so clear as to be undisputed. Beckman and PAFA had never had any contact and neither one was aware of the other’s role, if any, in the football league. PAFA had no control or authority over Beckman’s conduct.

Plaintiff argues, however, that because defendant Childers, as a coach, was a “member” of the Association, and Childers, “in turn, enlisted Linda Beckman *** uo assist in organizing the awards function,” this made Beckman “a sub-agent or a special agent.”

Generally, “[a]n association may not be held *** responsible for the negligence of a third person employed by a member in the prosecution of the member’s business.” (7 C.J.S. Associations §38, at 88 (1980).) Under general agency principles, however, the appointment of an agent may be made through another person, such as when the principal and primary agent agree that the agent will employ another agent. (Sorg v. Crandall (1908), 233 Ill. 79, 84 N.E. 181; Purgett v. Weinrank (1920), 219 Ill. App. 28; American Express Co. v. Stuart (1907), 134 Ill. App. 390.) Generally, an agent cannot delegate his authority and have the services performed by a subagent without express permission from the principal unless the permission can be implied from the nature of the business or custom. Doggett v. Greene (1912), 254 Ill. 134, 98 N.E.219; Sorg v. Crandall, 233 Ill. 79, 84 N.E. 181.

There is nothing in the record indicating that PAFA empowered Childers or any coach to enlist the help of other people to help him with his football-related duties on behalf of PAFA.

Nevertheless, even if Childers could appoint Beckman as a sub-agent, because PAFA’s permission for coaches to delegate tasks to parents might be implied from the nature of the football organization, PAFA could not be held liable for Beckman’s conduct.

The parties agree that Beckman’s status as a volunteer does not preclude her from being an agent of PAFA. The Restatement (Second) of Agency, section 225 (1958), states:

“One who volunteers services without an agreement for or expectation of reward may be a servant of the one accepting such services.”

However, Comment b to section 225 explains:

“In determining whether or not one rendering gratuitous assistance to another is a servant, the purpose for which the former acts may be important.” Restatement (Second) of Agency §225, Comment b (1958).

The purpose for which Beckman acted, in making reservations and in asking that the tables be rearranged, did nothing to further the purpose underlying the existence of the Association, i.e., to provide a youth football program for the community. The pizza party was not sponsored by the PAFA. In Harvey v. Ouachita Parish School Board (La. App. 1989), 545 So. 2d 1241, the court affirmed summary judgment for the defendant school athletic association where plaintiff, a high school football player, was injured during a school football game against a team which had a reputation for engaging in excessive physical contact. The court found that the football association was nothing more than an instrument, the purpose of which was “to provide a framework under which high school athletic contests [could] be conducted and to promote sportsmanship in high school athletics.” (Harvey, 545 So. 2d at 1245.) The school, not the athletic association, conducted the games and hired the officials. The court held that the officials were not agents of the athletic association. Similarly, here PAFA is simply a structure used for organizing the team competition. PAFA does not conduct end-of-season parties.

PAFA did not recruit Beckman to organize the party. It would require a tortured reading of the facts here to find that the pizza party was somehow essential to the functioning of the football league. Moreover, PAFA did not have any right to summarily terminate Beckman’s self-appointed volunteer task of making reservations for the pizza party. There is also nothing in the record to show that this type of volunteer activity is customarily rendered on behalf of the PAFA.

(For various factors considered by courts in determining the liability of charitable organizations for the conduct of their volunteers, see generally Annot., Liability of Charitable Organization Under Respondeat Superior Doctrine for Tort of Unpaid Volunteer (1978), 82 A.L.R.Sd 1213; Annot., Liability of Youth Camp, Its Agents or Employees, or of Scouting Leader or Organization, for Injury to Child Participant in Program (1978), 88 A.L.R.Sd 1236; Annot., Liability of Member of Unincorporated Association for Tortious Acts of Association’s Nonmember Agent or Employee, 62 A.L.R.3d 1165 (1975).)

An example of a factual setting from which agency could be inferred, unlike the present case, is seen in Odessa School District No. 105 v. Insurance Co. of America (Wash. App. 1990), 791 P.2d 237, 240-41, where the court found that the school track team’s pizza party was an activity sponsored by the school district and thus covered under the relevant insurance policy. The court pointed to the fact that there was a “morale building” factor inherent in the pizza gathering because it supported those athletes who were about to compete in the district and State competitions; the school principal had preapproved the party; and a school bake sale was held to raise funds to support the activity.

In contrast, no officer of PAFA approved the September 15, 1987, party or even knew of it. Moreover, the Association did not sponsor any activity to raise funds for the pizza party, and no funds were provided by PAFA. Instead, each family paid for its own pizza and drinks.

As we have discussed, PAFA did not have the right or duty to supervise or control the pizza party. Beckman, a mother of one member of one particular team in PAFA, arranged to have the team members and their families have pizza together at the end of the season. PAFA officers had no connection with either Beckman or the restaurant. Cf. Dumas v. Lloyd (1972), 6 Ill. App. 3d 1026, 1029, 286 N.E.2d 566 (prima facie case of agency relationship established where evidence shows agent’s authority was limited by owner of service station, who frequently visited the premises, laid down certain rules, owned all the equipment, set the prices, had his name on all records and accounts, and terminated the relationship with the agent).

We are aware of no case holding that a restaurant customer who merely made reservations at the restaurant for her son’s football team becomes an agent of her son’s football association simply by making the reservation at the restaurant or by asking that the tables be rearranged so the group could sit together.

In addition, there can be no apparent or implied agency here, since there were no words or actions alleged by the plaintiff, including Beckman’s making a reservation or asking that the tables be pulled together, which would lead a reasonably prudent person to believe Beckman was acting under the authority of PAFA in asking that plaintiff rearrange the tables and chairs. See Goodknight v. Piraino (1990), 197 Ill. App. 3d 319, 326, 554 N.E.2d 1 (customer of tavern who brought pitcher of beer to table where she sat with plaintiff did not become agent of tavern, either under a theory of implied agency or apparent agency).

Plaintiff finally argues that, even if defendants are correct in their contention that Beckman was not acting as an agent of PAFA, liability would still exist due to the “Defendant Association’s ratification of the awards function.” Thus, PAFA would nevertheless be liable because it knew that coaches typically handed out the participation awards at a restaurant yet it said nothing. As defendants demonstrate, this contention was not presented to the trial court and is therefore waived. However, even if properly preserved, the argument is not persuasive.

A party cannot be deemed to ratify conduct to which it is a total stranger in the first instance. “Ratification is a form of equitable estoppel involving the express or implied adoption of the acts of another by one for whom the other assumes to be acting, even without authority. At the heart of the doctrine of ratification is the concept that the person ratifying obtains a benefit, and that the benefit is obtained through the actions of a person that is acting in his behalf with apparent or implied authority.” Swader v. Golden Rule Insurance Co. (1990), 203 Ill. App. 3d 697, 704, 561 N.E.2d 99, citing In re Marriage of Jackson (1989), 179 Ill. App. 3d 479, 484, 534 N.E.2d 687; Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 866, 504 N.E.2d 1289; Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 883, 489 N.E.2d 311; Advance Mortgage Corp. v. Concordia Mutual Life Association (1985), 135 Ill. App. 3d 477, 484, 481 N.E.2d 1025.

Only if the act is performed by someone purportedly acting on behalf of a “principal” can the acquiescence of the putative principal constitute ratification. Thus, a case for ratification cannot be bootstrapped upon the acts of strangers who do not profess to be acting on behalf of another.

Moreover, ratification may be inferred from silence only when the principal has full knowledge of all material facts. (Rouse Woodstock, Inc. v. Surety Federal Savings & Loan Association (N.D. Ill. 1986), 630 F. Supp. 1004; Swader v. Golden Rule Insurance Co., 203 Ill. App. 3d 697, 561 N.E.2d 99; Reavy Grady & Crouch Realtors v. Hall (1982), 110 Ill. App. 3d 325, 442 N.E.2d 307.) Ratification will not be implied from a principal’s acts where at the time he was not fully informed of the facts. Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 400 N.E.2d 614.

. Here, PAFA possessed only the most general knowledge that typically some coaches, team members and their families had a party at the end of the season. We do not believe that this qualifies as “full knowledge of all material facts.” PAFA. certainly did not possess knowledge that Beckman had made reservations at a particular restaurant, or that she asked that the tables be rearranged. Thus, there is no ratification.

We conclude that the trial court properly found that there are no general issues. of material fact regarding the vicarious liability of PAFA or its president, defendant Rudolph, or defendant Beckman as an alleged agent of PAFA.

In addition, the gravamen of the complaint is that Beckman, as the only named defendant present in the restaurant, was negligent in moving the chairs and tables, “so as to allow a clear and unimpeded path,” and then failing to “pick up clothes and other garments” which had fallen onto the floor. Plaintiff argues that Beck-man, “under the authority of Coach Childers, voluntarily undertook to have the tables and chairs rearranged into a specific configuration for the awards function.”

However, Beckman testified that it was actually plaintiff and a cook who moved the tables and chairs, at the request of Beckman. Plaintiff filed no counteraffidavit or deposition testimony to refute this. When a deposition is used in support of a motion or response to a motion for summary judgment and is not contradicted by a counter-affidavit or deposition, the sworn testimony in the deposition must be accepted as true for purposes of the motion. (In re Estate of Myers (1983), 120 Ill. App. 3d 726, 458 N.E.2d 1102.) Thus, depositions may be used in lieu of a counteraffidavit to oppose summary judgment motions. Abel v. General Motors Corp. (1987), 155 Ill. App. 3d 208, 507 N.E.2d 1369; Stando v. Grossinger Motor Sales, Inc. (1980), 89 Ill. App. 3d 898, 412 N.E.2d 600.

It is axiomatic that a principal cannot be made liable through the doctrine of respondeat superior when the agent’s actions in no way constitute negligence. (Dumas v. Lloyd (1972), 6 Ill. App. 3d 1026, 286 N.E.2d 566.) There is no fundamental distinction between liability of a principal for the tort of an agent and liability of a master for the tort of his servant. Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.

We also note the holding in Loosier v. Youth Baseball & Softball, Inc. (1986), 142 Ill. App. 3d 313, 491 N.E.2d 933, where this court affirmed summary judgment for the defendant baseball organization where the complaint alleged that the minor plaintiff was injured while selling raffle tickets to finance the costs of the baseball program, stating: “While defendant has a duty to supervise the activity of [football] games while the players are on the field actively participating in the sport and entrusted by their parents to their coaches, we are unwilling to conclude that they are required to supervise those same players” when they are selling raffle tickets and “while they are under the care of their parents.” (Loosier, 142 Ill. App. 3d at 318.) The court went on to declare:

“To the extent that public policy enters into the analysis, no reasons sounding in public policy would require that a duty of continuous protection be imposed. Youth Baseball provides a service to the community by sponsoring sports activities for young people *** and it raises money for these activities by the sale of raffle tickets by its members on a voluntary basis. *** We find that public policy does not require that citizens, who do volunteer work in coaching baseball and softball teams, provide supervision of all team members at the time when a team member is engaged in the activity of selling a raffle ticket. We find that the contrary is dictated by public policy, because such a requirement would impose an unreasonable burden upon those who operate and sponsor the Youth Baseball program.” (Loosier, 142 Ill. App. 3d at 317-18.)

The court in Loosier noted that the “only involvement of Youth Baseball was that it had provided the tickets that [the minor] was selling with the permission of and while in the care of his parents. Under these circumstances, we find that Youth Baseball has no duty of supervision and affirm the trial court’s entry of summary judgment in defendant’s favor.” (Loosier, 142 Ill. App. 3d 313, 491 N.E.2d 933.) Similarly, even if a basis for vicarious liability were shown here, we would question whether we would support imposition of liability on PAFA, which provides a community service by sponsoring football for young people, for not supervising the way in which team members and their families hung up their coats or asked to have their tables arranged when they gathered at a restaurant for an end-of-the-season pizza party.

In conclusion, we hold that the trial court properly entered summary judgment in favor of defendants where the affidavits, depositions and pleadings on file established that no genuine issue of material fact existed.

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

Judgment affirmed.

LORENZ and MURRAY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PLACIDO LABOY, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—1172
    Opinion filed March 20, 1992.

      Michael J. Pelletier and Marc Davidson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and John Guinn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant, Placido Laboy (Laboy), was charged by indictment with the offenses of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a)) and attempted aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 12 — 14(a)(1)). After a jury trial Laboy was found guilty of both offenses. Thereafter, Laboy was sentenced to consecutive sentences of 60 years’ imprisonment for armed robbery and 15 years for attempted aggravated criminal sexual assault.

On appeal Laboy presents the following issues for review: (1) whether his conviction must be reversed and the cause remanded for a new trial where the trial court’s findings that Detective Zuley did not commit peijury at Laboy’s trial, and that the disputed testimony did not affect the outcome, were against the manifest weight of the evidence; (2) whether Laboy’s consecutive sentences should be modified to run concurrently; and (3) whether the consecutive sentences must be vacated and the sentence reduced or the cause remanded for resentencing because the trial court erroneously found that the complainant suffered serious physical harm and improperly relied on factors inherent in the offenses.

The case of Laboy v. Zuley (N.D. Ill. 1990), 747 E Supp. 1284, is currently pending in the Federal district court. That action is a civil rights case involving the issue of the perjury. On March 25, 1991, this court entered a rule to show cause why this case should not be stayed pending a resolution of the perjury issue in the Federal case. Both the State’s Attorney’s office and the State appellate defender’s office have filed responses to the rule suggesting that this court should not delay a ruling in this case. We agree.

M.H. testified that at approximately 3:30 a.m., she and her boyfriend, Chris, were walking through Homer Park when they were approached by an armed man, wearing a bandana which covered his face from the nose down. Chris dropped to the ground, and pulled down M.H.’s leg so she would kneel as well. The man said he wanted their money. They told the man that they did not have any money, but that M.H. did have a gold chain. The man ripped the chain off her neck, pulled her up, put the gun to her head, and pulled her away.

Chris testified that the gunman said, “I’m going to take your lady.” Chris saw the assailant walking off into the darkness with his arm around M.H. and a gun to her head. As the assailant dragged M.H. away, Chris heard M.H. scream, “Christopher, help me. Help me.”

The gunman told M.H. if Chris moved, he would kill her. He continued to tell her not to look at his face. At trial, M.H. testified that the assailant was about 5 feet 5 inches tall, he weighed 150 to 160 pounds, and his nationality was “white hispanic.”

The man took M.H. across the street and went about a block to his waiting car. He pushed her into the car by her head. The assailant then put his knee on her head, closed the door, and hit her on the head with the gun five or six times. He threatened to kill her if she moved. The offender then laid the gun flat against her face and drove off.

When they arrived at Irving Park Road, the assailant told M.H. to “suck his dick.” He had removed his penis from his pants and tried to push her head towards his pants. M.H. jerked her head up and screamed. She was able to see the assailant’s uncovered face since he was no longer wearing the bandana. M.H. noticed that he had an indentation between his eyes, a beard and a mustache. After describing the assailant’s features to the court, the victim identified Laboy as the offender.

Laboy drove faster, but then started to slow down. He then pulled her up, stuck the gun in her side, and told her to shut up and look straight ahead. M.H. saw a Chicago police department paddywagon. She specifically testified:

“He was really angry now. He slammed my head back down to the console. The car was going faster and faster. I got very frightened. He was pressing the gun harder and harder to my head, so I pushed down his hand and he started swinging at me. I had my head lifted and was staring at him. He was trying to reach for me. I grabbed for the door and I had the door open. One of my feet was out the door. He grabbed hold of me. I look [sic] at him one last time. I pushed his hand up in the air and I jumped from the car. *** I rolled for quite a distance, and when I stopped rolling, I was very bloody. I got up and tried to run. I was screaming.”

Detective Zuley testified that he interviewed the victim briefly at the police station after the incident. She described the offender as male Hispanic, medium complexion, 5 feet 5 inches tall, approximately 150 pounds, 26 years old, and having facial hair. Detective Zuley was in possession of the car keys and a gold chain found in the car identified by the victim.

The vehicle’s license tags were registered to Placido Laboy and registered to an address at 4709 North Beacon Street. After the police found that the address was no longer valid, they discovered a number of traffic tickets in the car, all issued from the 4400 block of Paulina. They were able to find the defendant’s last name at 4407 North Paulina by looking at the mailboxes and doorways up and down the block. The police were unable to find Laboy there at about 5:30 or 6 a.m. Later, at approximately 7 a.m. they returned with the keys recovered from the car.

At approximately 7 a.m. Detective Zuley saw a man fitting the description of the offender that was given by M.H., walking behind the building. The officers followed that person, watched him go up to the rear, then up to the front of the apartment at 4407 North Paulina, and then heard him go to the back door. The person tapped at the back door and whispered, “Let me in.” At that point, the officers approached him, identified themselves, asked him who he was, and, upon learning that he was Placido Laboy, took him into custody. At that time, Detective Zuley tried the key on the keyring to the lock of that apartment and found that it opened the door.

Detective Zuley took Laboy back to the police station and placed him in a lineup. Chris went into the room to view the lineup first and was unable to identify the offender. According to Detective Zuley, as Laboy approached the viewing window during M.H.’s viewing of the lineup, M.H. grabbed onto him and hugged him. M.H. was told not to identify her assailant until all the suspects had gone through the procedure. After viewing the subjects in the second portion of the lineup where the suspects all wore masks to cover the lower part of their faces, M.H. identified Laboy as the offender. The curtains in the viewing room were then closed, the subjects spoke, and M.H. identified the voice of Laboy as the voice of the offender. According to Detective Zuley when M.H. heard Laboy’s voice she began to tremble.

Detective Zuley testified that after M.H. identified Laboy, he recovered Laboy’s pants in order to look for M.H.’s hair. After recovering the pants, Detective Zuley noticed blonde hairs in the teeth of the zipper and stuck in the corner of the pocket. Detective Zuley placed the pants in a sealed plastic bag and sent it to the crime lab. He then plucked some hairs from M.H.’s head, sealed those in a separated envelope, and submitted it to the crime lab.

The jury found Laboy guilty of armed robbery and attempted aggravated criminal sexual assault. In addition to trial counsel’s motion for new trial, Laboy filed a pro se motion for judgment of acquittal notwithstanding the verdict, or in the alternative, for new trial. Subsequently, Laboy filed a complaint against trial counsel with the Attorney Registration and Disciplinary Commission. Laboy also filed a pro se motion to supplement, and a motion for attachment of exhibits to the motion for judgment of acquittal notwithstanding the verdict, or in the alternative, for new trial. The public defender’s office was appointed to represent Laboy in his post-trial motions and at sentencing.

Among the contentions addressed at the hearing on the motions were: (1) Laboy was not proven guilty beyond a reasonable doubt; (2) trial counsel was ineffective for failing to investigate the case and an available alibi; (3) trial counsel was ineffective for failing to argue pretrial suppression motions that had been previously filed by the assistant public defender and the defendant; (4) Detective Zuley perjured himself at trial, thus depriving Laboy of a fair trial; and (5) Detective Zuley’s testimony at the evidentiary hearing constituted newly discovered evidence requiring a new trial.

At the post-trial evidentiary hearing, in addressing whether trial counsel was ineffective, the court entertained the motions that had been filed, including the motion to suppress testimony concerning the lineup identifications, and motion to quash the arrest and suppress evidence on the basis of a failure of probable cause to arrest. Laboy, Jeanette Laboy (his mother), and Frances Richko (his sister) testified on behalf of the defense, and Detective Zuley and Marshall Weinberg (Laboy’s trial counsel) testified for the State.

The trial court denied Laboy's motions, finding that the lineup was not unnecessarily suggestive and that there was probable cause to arrest him. The trial court also found that Laboy and his alleged alibi witnesses (Jeanette Laboy and Frances Richko) were unbelievable, that there was insufficient evidence to indicate that Mr. Weinberg failed to adequately investigate the case or present an available alibi, and that there was no merit to the motions which were not argued before trial.

After Detective Zuley testified, Laboy made a motion to amend his petition arguing that the detective’s testimony at trial was perjured since it was contradictory to his post-trial testimony. Detective Zuley’s testimony at trial concerning (1) information he had about the offender when he arrested Laboy; (2) whether or not he had taken La-boy’s pants before Laboy was placed in the lineup and then returned them to him for the lineup; and (3) whether he kept an extra separate set of hairs found on Laboy’s pants and sent them separately to the crime lab differed from his testimony at the evidentiary hearing. The trial judge stated that he would not automatically assume there was perjury because someone said something different at the post-trial hearing than he said at trial. According to the trial judge, the inconsistencies in the detective’s testimony could be error, or could be perjury, but all of these things dealt with credibility and believability of the witness which the court took into consideration.

Laboy was sentenced to 15 years’ imprisonment for attempted aggravated criminal sexual assault and an extended term of 60 years for armed robbery, both sentences to run consecutively.

For the following reasons, we remand the matter to the trial court for an evidentiary hearing.

I

Laboy argues that his conviction must be reversed and the cause remanded for a new trial because the trial court’s findings that Detective Zuley did not commit perjury at the trial and that the disputed testimony did not affect the outcome were against the manifest weight of the evidence. The State concedes there were inconsistencies in Detective Zuley’s testimony, but maintains that these inconsistencies fall short of establishing perjury.

At trial Detective Zuley testified to the following. On July 10, 1987, he interviewed the complainant and she described the offender as male Hispanic, medium complexion, 5 feet 5 inches tall, approximately 150 pounds, 26 years old, and having facial hair. Later that day at approximately 7 a.m., he and other officers were at 4407 North Paulina and they saw a male white Hispanic who fit the description given by M.H. walking into the alley behind the building. That person was Laboy, and they arrested him.

Later that afternoon a lineup was conducted which included La-boy. After Laboy was identified, Detective Zuley removed Laboy’s pants for the purposes of finding strands of M.H.’s hair. Detective Zuley noticed blonde hairs in the zipper and pocket so he sealed the pants in a plastic bag and sent it to the crime lab. He then plucked hairs from M.H.’s head, sealed those in a separate envelope and submitted those to the crime lab for analysis and comparison with the hairs on the pants.

On cross-examination, it was established that Detective Zuley made up a police report in the case and nowhere in his report did he state that the person who committed the offense had facial hair. He restated that he took Laboy’s pants after he was identified. He specifically denied taking the pants before the lineup and returning them to Laboy for the lineup.

Mary Pulling, a forensic scientist for the Chicago police department, testified at trial. She received two sealed packages: one contained the defendant’s pants and the other contained a sample of the victim’s hair. Ms. Pulling determined that the hair removed from the pants exhibited characteristics consistent with M.H.’s hair.

At the hearing on Laboy’s post-trial motions, Laboy testified that prior to the lineup, Detective Zuley took his pants from him and then later came back and returned them. The officer stated, “We found hairs on your pants.” In his pretrial and post-trial motions Mr. Laboy alleged that the complainant’s hair was planted on his pants.

At the post-trial hearing, Detective Zuley testified for the State. Detective Zuley testified that when he approached Laboy on July 10 the description of the offender that he possessed did not mention facial hair. Laboy was followed because there was nobody else out there to follow and the way he was going up the alley in the direction he was going made Detective Zuley curious as to where he was going.

Detective Zuley also testified that at the police station, prior to the lineup, he took Laboy’s pants and went outside the interview room. After he took the pants from Laboy, Detective Zuley looked at them with a magnifying glass and found hair. At that point he took the hairs off the pants because he had to return the pants to Laboy for him to wear during the lineup. After the lineup Detective Zuley took the pants away from Laboy again in order to submit the pants to the crime lab for analysis.

Due to the discrepancies in Detective Zuley’s testimony at trial and at the hearing, defense counsel argued to the court that Zuley’s testimony at trial constituted perjury, and therefore Laboy was denied due process and a fair trial. In denying defense counsel’s motion for new trial, the trial court stated:

“It could be perjury, yes. It could be planted, yes. And I think if so, he should be indicted. It could be in error. His thought process is jogged at this point. I don’t know why he would get on the stand at this point and tell a story that’s totally different from other [sic] and put himself in that position where he could have easily told the original story. All of these things deal with the credibility and the believability of that particular witness which the Court will consider.”

Later the trial court again denied defense counsel’s motion stating:

“The defense brought out some inconsistent testimony of the police officer. It was indeed inconsistent. Why, I don’t know. It concerned the hairs on his pants which is a part of the evidence during the trial. Whether or not it was a crucial part of the trial, I am not certain. I don’t think it would have made any difference one way are [sic] the other, whether they had the hair or they didn’t have the hair. Why the testimony is inconsistent, I don’t know. There is no reason for the officer to deliberately testify today inconsistently with his testimony before. So the only thing I can really attribute it to, certainly no one would outwardly commit perjury on two separate transcripts. I take it that he made an error. Whether the error was in the first testimony or the second testimony, I am not certain. But I don’t think it — I think it didn’t effect [sic] the outcome of the case in anyway [sic] whatsoever in my opinion.”

The inconsistencies in the detective’s stories regarding the hairs are the basis of Laboy’s charge of perjury. As disclosed in the trial court’s rulings quoted above, the trial court concluded that the conflicts in the detective’s testimony could be errors or perjury but that all those things dealt with credibility and believability. However, perjury does not deal with inconsistency, it deals with falsity. Perjury is defined in Illinois law as:

“A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.” Ill. Rev. Stat. 1987, ch. 38, par. 32 — 2(a).

The key element in this case is the materiality of the detective’s testimony concerning his alleged recovery of the hairs allegedly found in Laboy’s pants. The State claims the inconsistencies in the detective’s story “fall short of establishing perjury,” arguing that “[i]t is farfetched to believe that a witness would knowingly prejudice himself at two separate proceedings when there was no plausible reason to lie.” However, whether or not an individual has a reason to lie is not part of the definition of perjury. A witness, whether sworn or affirmed, is obligated to tell the truth; whether or not he has a reason to lie is irrelevant.

It has long been recognized that the deprivation of an individual’s liberty based upon false testimony is contrary to the basic principles in a civilized society. (People v. Cornille (1983), 95 Ill. 2d 497, 509, 448 N.E.2d 857, 863.) Although there is nothing in this record to indicate that the prosecutor had any knowledge of the falsity in the witness’ testimony, its falsity need not have been known personally by the prosecutor in order for there to have been a knowing use and a constitutional violation. (People v. Cihlar (1986), 111 Ill. 2d 212, 219, 489 N.E.2d 859, 862.) Moreover, “the prosecution is charged with the knowledge of its agents including the police.” People v. Martin (1970), 46 Ill. 2d 565, 567, 264 N.E.2d 147.

Adequate evidence to support a finding of defendant’s guilt beyond a reasonable doubt was presented at trial. Yet, without the hair allegedly recovered from Laboy’s pants which also allegedly matched M. H.’s hair, the case involved issues of identification and credibility. Even the prosecution recognized the relevancy of the evidence by referring to it on more than one occasion in his closing argument at trial.

In People v. Henderson (1976), 36 Ill. App. 3d 355, 384, 344 N. E.2d 239, this court stated:

“The knowing use of false testimony by the prosecution to procure a conviction does constitute a denial of due process. [Citation.] However, for false testimony to constitute perjury, that testimony must have been material to defendant’s guilt or innocence. [Citation.] Mere conflicts in the testimony of a witness with prior statements made by him does not establish that the witness has given perjured testimony. [Citation.]”

However, “[o]nce the defendant establishes the condemned use of false testimony, he is entitled to a new trial unless the State can establish beyond a reasonable doubt that the false testimony was immaterial in that it did not contribute to the conviction.” People v. Cornille (1983), 95 Ill. 2d 497, 514, 448 N.E.2d 857, 866.

Based upon this record, this court is unable to determine whether the police officer committed perjury. Accordingly, we remand the case to the trial court solely for the purpose of an evidentiary hearing on the issue of whether or not Detective Zuley committed perjury. Should the trial court find that there was no perjury, Laboy’s convictions should be affirmed. However, if the trial court finds that the officer in fact perjured himself, Laboy should be accorded a new trial.

II

If the trial court determines that Detective Zuley did not commit perjury, we find that for the following reasons Laboy’s sentences should be affirmed.

Laboy was sentenced to 15 years for attempted aggravated criminal sexual assault and an extended term of 60 years for armed robbery, the terms to run consecutively.

As long as the decision does not conflict with the statutory regulations concerning the imposition of such sentences, the decision whether to impose consecutive or concurrent sentences is a determination left to the sound discretion of the trial court. (People v. Tigner (1990), 194 Ill. App. 3d 600, 609, 551 N.E.2d 304.) At the time Laboy was sentenced, section 5 — 8—4 of the Unified Code of Corrections provided in relevant part:

“(a) *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was a substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury ***, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.
(b) The court shall not impose a consecutive sentence *** unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1987, ch. 38, pars. 1005-8-4(a), (b).

Laboy argues that the imposition of consecutive sentences was an abuse of discretion because the incident concerned a single course of conduct during which there was no substantial change in the nature of the criminal objective, and the complainant did not suffer severe bodily injury. The State maintains that the consecutive sentences should be affirmed since the trial judge correctly found that there was a substantial change in the defendant’s criminal objective during his criminal conduct, and the term was required to protect the public from future criminal activities by the defendant. In addition, the victim did suffer severe bodily harm. We disagree with defendant’s position and find that the trial court’s imposition of consecutive terms of imprisonment was proper.

The trial court is in the best position to tailor a sentence to the facts and needs of the case. (People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) A trial court’s decision with regard to sentencing is entitled to great deference, and absent an abuse of discretion, a reviewing court should not substitute its judgment for that of the trial court. (Steppan, 105 Ill. 2d at 323; Perruquet, 68 Ill. 2d at 154.) Although the victim is the same, and the time span is short, if the various offenses are distinct, multiple sentences are appropriate. People v. Malcom (1973), 14 Ill. App. 3d 378, 302 N.E.2d 352, 357.

During Laboy’s sentencing the trial court specifically stated:

“In addition, the Court has considered the facts of his case. And after you committed your armed robbery, then your entire course of conduct changed.
At this point, okay, I have completed the robbery and now I am going to take this young lady and now I am going to rape her. That’s a separate and distinct crime and perhaps unquestionably worse than a crime of armed robbery, absolutely worse. No excuse for it. And it takes a wild animal to commit that kind of a crime.
The public must be protected from you, sir. And I am going to sentence you to the sum of 15 years. And because the public needs protection and because of the separate and distinct crime, it will be consecutive to the 60 years. I am sentencing you to a total of 75 years.”

In Tigner this court stated: “When consecutive sentences are imposed pursuant to law and supported by the record, they will not be disturbed on review.” (People v. Tigner (1990), 194 Ill. App. 3d 600, 609, 551 N.E.2d 304, citing People v. Holland (1987), 121 Ill. 2d 136, 520 N.E.2d 270; People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300.) We find ample support in the record for the trial court’s determination that consecutive sentences were appropriate. Laboy approached M.H. and her boyfriend with a gun and demanded their money. Laboy got really angry about the fact that Chris and M.H. did not have any money so Chris told him he could check his pockets. Subsequently, M.H. remembered that she had a gold chain and offered that to Laboy. Laboy then ripped the gold chain from her neck. Once the robbery was completed, Laboy abducted M.H. and attempted to commit aggravated criminal sexual assault. The record shows that the robbery and the subsequent attempted criminal sexual assault were two separate courses of action. It was not until Laboy completed his attempt to rob M.H. and her boyfriend that his conduct changed.

The trial court found both that the crimes were separate and distinct and that the imposition of consecutive terms was necessary to protect the public from the defendant. We agree with the trial court’s decision and affirm the decision to impose consecutive sentences in this case.

Ill

Due to an armed robbery conviction in 1980, Laboy was eligible for an extended-term sentence for his armed robbery conviction under section 5 — 5—3.2(b)(1) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5— 3.2(b)(1)). Laboy argues that the trial court’s imposition of the maximum 60-year extended-term sentence for armed robbery and regular maximum 15-year sentence for attempted aggravated criminal sexual assault was improper where it erroneously found that the complainant suffered serious physical harm, and improperly relied on the fact that the offender intended to sexually assault the complainant, that the robbery posed a threat of serious harm, and that the offender displayed and threatened to use a dangerous weapon during the attempted aggravated criminal sexual assault, all factors inherent in the offenses.

The State maintains that the extended-term sentence for armed robbery was appropriate since the defendant had previously been convicted of the same felony, within the past 10 years, in addition to causing the victim serious bodily harm. In addition the State maintains that the 15-year sentence for attempted aggravated criminal sexual assault was appropriate since the victim suffered serious bodily harm and had a criminal history. Furthermore, the court considered other relevant factors which were not inherent in the offenses.

At the time of defendant’s sentencing, the applicable statute provided:

“[T]he following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 8 — 2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(1).

The State introduced two certified copies of Laboy’s conviction record at the sentencing hearing. The trial court stated that it would only consider convictions, and not arrests without convictions. On May 23, 1979, the defendant pled guilty to robbery and was sentenced to three years’ felony probation. On August 26, 1980, the defendant pled guilty to armed robbery and was sentenced to seven years in the Illinois Department of Corrections. The State asked that Laboy be sentenced to an extended term for armed robbery under section 5— 3 — 2 since he was convicted of the same class of felony within 10 years.

The trial court sentenced the defendant to a 60-year extended term for armed robbery. A trial court’s decision with regard to sentencing is entitled to great deference, and a reviewing court cannot substitute its judgment for that of the trial court unless there has been an abuse of discretion. (People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) The trial court properly sentenced the defendant to an extended term for armed robbery since he had previously pled guilty to armed robbery within 10 years. (See People v. Tigner (1990), 194 Ill. App. 3d 600, 608, 551 N.E.2d 304.) Accordingly, we affirm the decision of the trial court to impose a 60-year extended-term sentence for armed robbery.

The State also maintains that Laboy’s 15-year sentence for attempted aggravated criminal sexual assault was appropriate since the defendant’s conduct caused serious bodily harm and he threatened even greater harm. In addition, the State maintains that the trial court considered other relevant factors beyond those inherent in the offenses.

The Illinois Supreme Court has stated:

“While the classification of a crime determines the sentencing range, the severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted. [Citations.]” (Emphasis in original.) People v. Saldivar (1986), 113 Ill. 2d 256, 269, 497 N.E.2d 1138, 1143.

Laboy argues that in this case the record shows that M.H. did not suffer serious harm from the offenses. Laboy maintains, “although once they were in the car the offender hit M.H. several times in the head with his gun, and then moments later M.H. jumped from the offender’s moving car, there was no evidence presented to indicate that M.H. suffered serious physical injury.” Laboy further points out that there was no evidence to suggest that M.H. suffered any blood loss or internal injuries, there was no evidence to show that she received any medical attention other than one examination by Dr. Reed 17 hours after the incident, and in addition, M.H. was not taken to the hospital immediately after the incident or ever hospitalized. We disagree with defendant’s argument. When the victim was taken to the hospital and whether or not she suffered internal injuries or blood loss are not dispositive of whether she suffered severe bodily injury.

M.H. testified that when she was abducted by Laboy he pushed her into his car by her head, climbed over her putting his knee on her head, and closed the door. When she tried to lift her head, he hit her in the head five or six times with his handgun. Later, she struggled with the defendant and he slammed her head against the console between the car seats. When she screamed as they passed the police paddywagon, the defendant again slammed her head against the console and pressed the gun harder and harder against her head.

Dr. Diane Reed of Ravenswood Hospital examined the victim and observed swelling and tenderness on the top of her head and forehead, a large abrasion on her buttock and smaller ones on her right hip and left shoulder, as well as swelling and an abrasion on her right elbow.

The sentencing judge, who heard the testimony and observed the witnesses, stated, “There is no question in the Court’s mind that your [defendant’s] conduct certainly caused serious physical harm to this young lady [victim].” We agree with the trial court.

Laboy further argues that several of the trial court’s comments preceding the imposition of the sentence disclosed that the trial court improperly considered factors inherent in the offense. Reading the trial court’s comments in their entirety, it is clear that the trial court only considered proper factors in sentencing the defendant.

The defendant specifically points to the following comment by the trial court:

“[Y]ou banged her a few times with the gun across the head. You told her you were going to rape her. You were going to kill her if she saw your face. And when she saw your face, you said, now you have got it. Now you have got it. You’re going to die. I have to kill you.”

M.H. testified that when she was abducted by the defendant he told her not to look at his face. He also told her that if her boyfriend moved, he would kill her. Once in the car, the defendant hit her five or six times with a gun and told her if she moved “so much as a heartbeat” he would kill her. When M.H. was able to lift her head and observed the defendant’s face, he said, “I told you not to look at me, now you have done it.” The defendant became really angry, slammed her head down and accelerated around a comer. Shortly thereafter, M.H. jumped from the moving car.

The defendant is correct; the trial court’s statement does not mirror the testimony presented at trial. However, taking the statement in context, the trial judge was merely giving a synopsis of the testimony prior to imposing the sentence. Any error the trial judge made in stating that the defendant threatened to kill M.H. after she saw his face rather than before is harmless.

The defendant further argues that the aforestated comment indicates that the trial court improperly relied on defendant’s threat to use the weapon as a factor in aggravation. Again, we find that the trial court was giving a brief synopsis of the crime when that statement was made. Further, we do not feel that the trial court used the threat as a factor in aggravation.

In People v. Barney (1982), 111 Ill. App. 3d 669, 679, 444 N.E.2d 518, 525, this court stated as follows:

“[T]he imposition of a sentence of any length within the range provided for the class of the crime of which defendant was convicted is a decision committed by the statute to the discretion of the sentencing court. The statute imposes no requirement that the minimum sentence be imposed in the absence of aggravating factors.”

When considering factors in aggravation and mitigation, the trial court specifically found that the defendant inflicted serious bodily harm upon the victim, as well as noting the defendant’s prior convictions. The trial court also specifically stated that society needed protection from the defendant. Although the defendant received the maximum possible sentence for the offense, we do not believe the record indicates that any impermissible factors contributed to the sentencing decision. A reviewing court is not a sentencing court, and it should not substitute its judgment for that of the trial court merely because it would have balanced the factors differently. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.) We find that the trial court did not abuse its discretion in sentencing the defendant.

Accordingly, for all the reasons set forth above, we reverse and remand the matter to the trial court for an evidentiary hearing on the issue of perjury. If the trial court finds that perjury was committed, the defendant is entitled to a new trial. However, if the trial court does not find the use of perjured testimony, defendant’s convictions and sentences should be affirmed.

Reversed and remanded with directions.

LORENZ and GORDON, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES COLLINS, Defendant-Appellant.
    First District (6th Division)
    No. 1—91—0180
    Opinion filed March 20, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Mary C. Arundel, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica Calderon, and Christopher Daddino, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a jury trial in the circuit court, defendant Charles Collins was found guilty of burglary and theft. He was sentenced to a term of six years on the burglary count and 364 days on the theft count, the sentences to run concurrently. The issues raised on appeal are: (1) whether the trial court erred in denying defendant’s motion in limine to preclude the State from introducing evidence of defendant’s 1986 theft conviction; (2) whether the trial court improperly restricted cross-examination of the State’s witness; (3) whether the trial court erred in not allowing a defense witness to testify regarding the complainant’s prior efforts to evict defendant; (4) whether the trial court erred in not allowing defendant’s proposed jury instruction; and (5) whether prosecutorial misconduct during closing argument denied defendant the right to a fair trial. We affirm.

The complainant, Karen McDonald, her three children and her fiance, Frank Kilmek, lived in an apartment at 4100 West Crenshaw in Chicago. The apartment was in a three-story building which had two entrances. McDonald’s mother owned the building and McDonald was the building manager. The defendant also lived in the building. Sometime in January 1990, Kilmek, McDonald and her three children left the apartment to stay with McDonald’s mother because there was no heat or electricity. However, they left all of their belongings in the apartment and returned every day to check their mail. On February 23, 1990, at approximately 2:45 p.m., Kilmek was at the building getting the mail when he heard a door close. He asked who was there, and a male voice answered “James.” Kilmek then went upstairs, where he found defendant standing at the door of McDonald’s apartment. Defendant had a trench coat over his arm and was carrying a pillow case filled with various items. When defendant saw Kilmek he put the pillowcase down, pulled a gun from his pocket, and told Kilmek to step back so that he could get out of the building. Me-Donald arrived at the building at this time and was halfway between the gate and the building entrance when defendant ran past her. Kilmek came out a few seconds later and told McDonald to call the police. After the police were contacted, McDonald and Kilmek retrieved the trench coat, which belonged to Kilmek, and the pillowcase, which contained various items belonging to McDonald. Inside the pillowcase were two walkmen, a car radio, and some canned goods. McDonald and Kilmek also noted that the burglar bars in the apartment doorway were bent and the wood surrounding the door lock was broken. According to her trial testimony, McDonald was unable to thoroughly search the apartment on the day of the incident but she did tell the police that some items of clothing, a videocassette recorder, television, amplifier and turntable were included in the property taken.

Detective Carroll apprehended defendant several days after the incident as defendant was leaving the building at 4100 West Crenshaw. After being advised of his Miranda rights and the reason for his arrest, defendant stated “so the bitch called the police on me.” Following defendant’s arrest, his apartment was searched and several items were confiscated, including a travel bag, purse, electric heater, and two-burner hotplate. On February 28, 1990, McDonald and Kilmek went to the police station where they identified the items taken from defendant’s apartment as their property.

McDonald testified that she had known defendant since November 1988, when he had moved into the building. She initially helped defendant with his apartment, but their relationship, which she described as strictly friendly, eventually deteriorated, and she tried to get him out of the building. McDonald signed a theft complaint against defendant in August 1989.

Kilmek testified that he was present when McDonald and defendant argued, and he knew that she wanted defendant out of the building.

Defendant’s brother, Ricky Collins, testified in defendant’s behalf that McDonald was initially in defendant’s apartment most of the time but that their relationship changed when McDonald began demanding money from defendant. McDonald then began calling the police and reporting that defendant was stealing. He testified that McDonald used a circuit breaker to turn off the lights in defendant’s apartment. Although Ricky Collins stated that defendant had a hotplate in the apartment as well as a “radiator,” and that the “purses” found in the apartment belonged to a man and woman who had lived in the apartment for a period of time, on cross-examination he could not say how many purses were in the apartment or describe any of them. He also stated that defendant’s hotplate had one burner and that the portable heater was kerosene rather than electric.

Defendant testified that when he first moved into the building he had an agreement with McDonald that he would serve as the building maintenance man in exchange for not paying rent. He acknowledged on cross-examination that he stopped performing maintenance duties by June 1989, but did not pay any rent until February 1990. Defendant stated that he and McDonald had been lovers but when their relationship deteriorated, McDonald started calling the police and accusing defendant of stealing property. Defendant denied seeing McDonald and Kilmek in the building on the afternoon of February 23, 1990.

Defendant first contends that the trial court’s denial of his motion in limine was error because the evidence of his misdemeanor retail theft conviction was more prejudicial than probative. Defendant filed a motion in limine to preclude evidence of a misdemeanor theft conviction which occurred in 1986. The State sought to introduce this evidence to impeach defendant’s credibility. The State maintains that the trial court’s denial of defendant’s motion was not error where it was based on proper consideration of the Montgomery factors.

In People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, the Illinois Supreme Court adopted the provisions of Rule 609 of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States as a standard for impeachment by evidence of a prior conviction. The rule provides in part as follows:

“ ‘(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from confinement, whichever is the later date.’ ” (Montgomery, 47 Ill. 2d at 516, quoting 51 F.R.D 391.)

The Montgomery court also noted that the trial judge is vested with discretionary authority to determine if the evidence should be admitted based on an assessment of whether the probative value outweighs the danger of unfair prejudice. (Montgomery, 47 Ill. 2d at 516-17. See also People v. McKibbins (1983), 96 Ill. 2d 176, 187-88, 449 N.E.2d 821; People v. Moman (1990), 201 Ill. App. 3d 293, 314, 558 N.E.2d 1231.) In People v. Washington (1984), 127 Ill. App. 3d 365, 468 N.E.2d 1285, the court held that evidence of the defendant’s prior misdemeanor convictions, although otherwise improperly admitted, was harmless where the jury was instructed that such evidence was admitted only on the issue of defendant’s credibility and the evidence did not contribute to defendant’s conviction. Washington, 127 Ill. App. 3d at 384.

In this case, the evidence of defendant’s prior conviction was properly admitted under the factors set forth in Montgomery where, although the conviction was for misdemeanor theft, which was punishable by imprisonment for less than one year, the crime of misdemeanor theft is one involving dishonesty. (People v. Spates (1979), 77 Ill. 2d 193, 202-03, 395 N.E.2d 563.) Another factor supporting the admission of this evidence was the proximity of the conviction to the instant offense which was four years earlier and well within the 10-year time limit in Montgomery. Finally, although misdemeanor theft is similar to burglary and theft, defendant was not unfairly prejudiced by the admission of this evidence where the trial judge specifically instructed the jury to consider the evidence “only insofar as it may affect his [defendant’s] believability as a witness and must not be considered by you as evidence of his guilt of the offense with which he is charged.” Therefore, we cannot say that the trial court’s denial of defendant’s motion in limine was an abuse of discretion.

Defendant also claims that the trial court improperly restricted his cross-examination of State’s witness Karen McDonald and that he was precluded from showing the jury that McDonald had filed false charges against him. While the general rule is that a witness may be cross-examined on matters that would show bias or motive to testify falsely (People v. Thompkins (1988), 121 Ill. 2d 401, 441, 521 N.E.2d 38), the scope of cross-examination is within the discretion of the trial judge and is only subject to review where there has been an abuse of discretion which results in prejudice to defendant. (People v. Winfield (1983), 113 Ill. App. 3d 818, 831, 447 N.E.2d 1029; People v. Richard (1980), 90 Ill. App. 3d 322, 330, 413 N.E.2d 5.) However, the discretionary authority of the trial court to restrict the scope of cross-examination arises only after sufficient cross-examination to satisfy the constitutional guarantee has been permitted. (People v. Maldonado (1989), 193 Ill. App. 3d 1062, 1069, 550 N.E.2d 1011; People v. Rufus (1982), 104 Ill. App. 3d 467, 472, 432 N.E.2d 1089.)

“To determine the constitutional sufficiency of cross-examination, a court looks not to what a defendant had been prohibited from doing, but to what he had been allowed to do. If the entire record shows that the jury had been made aware of adequate factors concerning relevant areas of impeachment of a witness, no constitutional question arises merely because defendant had been prohibited on cross-examination from pursuing other areas of inquiry.” Maldonado, 193 Ill. App. 3d at 1069.

In this case, the trial court’s restriction of defendant’s cross-examination of McDonald was not an abuse of discretion where he was given an opportunity to show the witness’ motive to testify against him. During his cross-examination of McDonald, defense counsel was allowed to cross-examine the witness regarding the fact that she wanted defendant out of the building and that she had called the police and had signed a theft complaint that he had taken property from the building. However, when defense counsel tried to question McDonald regarding the fact that the case was dismissed, the State’s objection was sustained, and defense counsel was restricted from inquiring further into the disposition of the theft complaint. Although a defendant is entitled to question a witness on any matter which would explain, modify or discredit the witness’ testimony, the evidence sought must make a proposition at issue more or less probable. (People v. Yuknis (1979), 79 Ill. App. 3d 243, 248, 398 N.E.2d 258.) While the dismissal of the theft complaint may have resulted from a lack of evidence, it may just as likely have been for other reasons not related to the merits of the charges. Because defense counsel’s cross-examination was only limited where the information sought was uncertain and potentially misleading, the trial court did not abuse its discretion in restricting this aspect of defense counsel’s cross-examination.

Defendant further claims that the trial court improperly restricted his cross-examination of McDonald regarding her use of the criminal rather than circuit court in her attempt to evict defendant. However, as discussed above, defendant was allowed to question McDonald on her previous charges against him and her desire to have him out of the building. Defendant’s attempt to question the witness regarding forum selection was speculative, irrelevant and collateral and would tend to confuse the jury in its efforts to reach a proper verdict. (People v. Cruz (1987), 164 Ill. App. 3d 802, 812, 518 N.E.2d 320.) Therefore, the trial court’s restriction of this line of questioning was also not an abuse of its discretion.

The defendant also alleges as error the trial court’s restriction of his direct examination of Ricky Collins regarding McDonald’s prior complaints to the police as this testimony would show that McDonald filed charges against defendant in order to evict him from the building. Ricky Collins lived with defendant during the time that McDonald filed charges against defendant. When defense counsel, during direct examination, tried to elicit testimony as to why McDonald called the police on defendant, the trial court sustained the State’s objection. We conclude that where such testimony required the witness to speculate on the motives of two other people which could result in information that was remote and uncertain, the trial court did not abuse its discretion in choosing to reject such evidence as of little probative value. People v. Castro (1989), 190 Ill. App. 3d 227, 239, 546 N.E.2d 662.

Finally, we note that the trial court’s ruling did not deny defendant his right to adequately develop his defense where Ricky Collins was allowed to testify that McDonald had called the police to complain about defendant on several occasions as well as other conflicts between McDonald and defendant. The jury was thus apprised of the nature of McDonald’s relationship with defendant as well as any potential bias or motive that McDonald might have to testify falsely.

Defendant next contends that the trial court erred in not allowing his proposed jury instruction because a question existed regarding who owned the property listed in the theft indictment. Defendant argues that when McDonald initially contacted the police on February 23, 1990, she did not include a hotplate, electric heater, travel bag or purse among the items taken. These items were subsequently found in defendant’s apartment. Although McDonald and Kilmek identified the items as their property, defendant claimed during his trial testimony that the property belonged to him. Defendant also argues that there was no proof of ownership regarding the other items that McDonald reported missing from her apartment. Thus, according to defendant, it was error for the trial court to refuse defendant’s tendered instruction.

The jury instruction requested by defendant was a non-Illinois Pattern Jury Instruction (IPI) which stated that:

“Proof that someone other than defendant owns allegedly stolen property is an essential element to the offense of theft.”

Illinois Supreme Court Rule 451(a) provides in relevant part that:

“Whenever Illinois Pattern Instructions, Criminal (2d ed. 1981) (IPI Criminal 2d), contains an instruction applicable in a criminal case, giving due consideration to the facts and the governing law, and the court determines that the jury should be instructed on the subject, the IPI Criminal 2d instruction shall be used, unless the court determines that it does not accurately state the law.” (134 Ill. 2d R. 451(a).)

(See also People v. Brooks (1989), 185 Ill. App. 3d 935, 942, 542 N.E.2d 64.) The decision whether to give a non-IPI instruction is within the discretion of the trial court, and the court may properly refuse such an instruction where an IPI instruction is given which addresses the same issue. Maldanado, 193 Ill. App. 3d at 1072.

One of the instructions given to the jury was IPI Criminal 2d No. 13.02,which states in relevant part:

“To sustain the charge of theft, the State must prove the following propositions:
First: That Karen McDonald and Frank Kilmek [were] the owners of the property in question; and
Second: That the Defendant knowingly obtained [and] exerted unauthorized control over the property; and
Third: That the defendant intended to deprive Karen McDonald and Frank Kilmek permanently of the use or benefit of the property.”

This instruction adequately covered the same subject matter contained in the instruction defendant requested where it specifically informed the jury that the State had to prove that McDonald and Kilmek (someone other than defendant) owned the property at issue. In addition, IPI Criminal 2d No. 1.02, which was also given to the jury, addressed the issue of the credibility of the witnesses. That instruction states:

“You are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in this case.
You should judge the testimony of the defendant in the same manner as you judge the testimony of any other witness.” (IPI Criminal 2d No. 1.02.)

While defendant claims that the instruction requested by defense counsel should have been allowed where a question existed as to who owned the property found in his apartment, the issue was adequately addressed by IPI Criminal 2d No. 13.02, and the jury was also instructed regarding the credibility of the witnesses in IPI Criminal 2d No. 1.02. Therefore, the trial court did not abuse its discretion in refusing to allow defendant’s proposed non-IPI jury instruction.

Defendant lastly contends that he was denied a fair trial by the prosecutor’s misconduct during closing argument because the prosecutor misstated the evidence and improperly defined the State’s burden of proof. Generally prosecutors have wide latitude to comment on evidence and draw reasonable inferences therefrom and, absent a clear abuse of discretion, a court’s rulings on the propriety of these comments will not be disturbed on review. (People v. Rochman (1986), 144 Ill. App. 3d 801, 813, 494 N.E.2d 688.) Prosecutors may not, however, misstate facts or argue facts not in evidence. (People v. Beier (1963), 29 Ill. 2d 511, 517, 194 N.E.2d 280.) Even so, these remarks do not mandate a reversal “unless they are so prejudicial as to constitute a material factor in defendant’s conviction.” People v. Townsend (1985), 136 Ill. App. 3d 385, 394, 483 N.E.2d 340, citing People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.

Defendant first argues that the evidence misstated by the prosecutor was his comments that five days elapsed between the time that McDonald reported a television set and video cassette recorder missing and when the police arrested defendant and that was enough time in which defendant could have sold these items on the street. Defendant argues that there was no evidence to support the inference that defendant sold the missing items on the street and that it was prejudicial. However, the prosecutor’s comments were made in response to comments by defense counsel in closing argument which implied that because the missing items were not found in defendant’s apartment, McDonald’s allegation that defendant took the items was not credible. Thus, defendant cannot claim error where the allegedly improper comments were in reply to and invited by defense counsel’s argument and where those arguments invited response and comment on the credibility of a witness. (People v. Morando (1988), 169 Ill. App. 3d 716, 733, 523 N.E.2d 1061; People v. Bunch (1987), 159 Ill. App. 3d 494, 515, 512 N.E.2d 748.) Additionally, any potential prejudice to defendant was cured by the trial court’s instructions to the jury that closing arguments by the attorneys were not evidence and that any comments not based on the evidence presented should be disregarded.

Defendant further argues that the prosecutor improperly attempted to define reasonable doubt and also incorrectly argued that the State did not have the burden to prove defendant’s guilt beyond every single doubt. The comment which defendant cites as error was made in the context of the following passage:

“There has been a lot of talk about the burden of proof, and the burden of proof being beyond a reasonable doubt. The State accepts that burden, but we also inform you that the burden is not beyond every doubt, that burden is not beyond every single doubt, it’s beyond, were to equal let’s say ten pounds, the State would have to prove, show you ten pounds, ten pounds of evidence.”

Defense counsel objected, and the court sustained the objection. The State continued to argue:

“The State does not have to show that every single doubt in your mind be erased, they just have to show you this defendant is guilty beyond a reasonable doubt, and we did that by the testimony of our witnesses, our credible witnesses.”

In People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500, the court held that similar comments by the prosecutor were not improper. The prosecutor in that case stated:

“Ladies and gentlemen, suffice it to say it is not proof beyond all doubt, it is not proof beyond any doubt, it is proof beyond a reasonable doubt.” Phillips, 127 Ill. 2d at 528.

In this case, the trial court sustained defense counsel’s objection to the portion of the prosecutor’s statements equating the State’s burden of proof to “ten pounds of evidence.” The remaining comments were only a restatement of the “beyond a reasonable doubt” standard which the Phillips court held was not improper. Phillips, 127 Ill.2d at 529.

Defendant cites People v. Ellis (1985), 134 Ill. App. 3d 924, 481 N.E.2d 320, and People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103, for the proposition that it is improper for the court or counsel to define reasonable doubt. In People v. Ellis, the prosecutor’s comment was:

“We have the burden of proving the defendant guilty beyond a reasonable doubt. This does not mean beyond the possibility of a doubt or a shadow of a doubt. There is a possibility of some.” (Ellis, 134 Ill. App. 3d at 926.)

The court held that while such comments should be avoided, the comments were not prejudicial. In People v. Eddington, the prosecutor’s comments regarding reasonable doubt were as follows:

“A reasonable doubt means just that. It does not mean beyond all doubt. As long as you may have some doubt as to what exactly occurred, that doesn’t mean the defendant is not guilty. That presumption of innocence vanishes as soon as you take your jury votes and the defendant is convicted. That’s a presumption, nothing more. Don’t let reasonable doubt stop you. That’s doubt based upon reason.” (Eddington, 129 Ill. App. 3d at 780.)

The court held that the above comments by the prosecutor were improper and, further, that it was improper for the court or counsel to define reasonable doubt.

Comparing the comments of the prosecutors in these three cases, the comments in this case were more like those in Phillips and Ellis than Eddington. We, thus, conclude that the comments were not improper and, further, that any existing error was cured by the trial court’s instruction to the jury on the purpose of closing argument and the proper burden of proof. People v. Scott (1990), 194 Ill. App. 3d 634, 645, 551 N.E.2d 288.

For the reasons set forth above, the judgment of the circuit court is affirmed.

Affirmed.

EGAN, P.J., and LaPORTA, J., concur.