author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME MURRAY, Defendant-Appellant.
    First District (4th Division)
    No. 1-87-3035
    Opinion filed July 19, 1990.
    Rehearing denied September 4, 1990.

      Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Kimberly A. Mozdzierz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Jerome Murray was convicted of murder and sentenced to 30 years’ imprisonment. On appeal, defendant argues that: (1) his right to a fair trial was violated when the trial court improperly excluded testimony exculpating him and inculpating another person; and (2) the trial court improperly considered the fact that a death occurred as an aggravating factor in sentencing him to a 30-year prison term.

We affirm.

Background

Evidence presented at trial disclosed that on February 6, 1987, at approximately 9:15 p.m., a group of young people including Andrew McKinney, David Frazier, Schvaya McCray, Charles Wilson and several of their friends were walking north along Wentworth Avenue when a red Chevrolet Monte Carlo approached from the north. McKinney noted that the front seat passenger, whom he recognized and identified as the defendant, Jerome Murray, or “Head,” was leaning out of the car window with a gun in his hand. McKinney heard defendant exclaim, “GDK,” an abbreviation for “Gangster Disciple Killer” just before defendant fired a shot from his gun. Defendant then yelled, “4VL,” an abbreviation for “Four Vice Lords” before he fired again.

The second shot hit Andrew McCoy. The other youths carried McCoy to a nearby alley away from the scene of the shooting.

The police and paramedics were called and arrived several minutes later. At that time, McKinley informed the police that the defendant shot McCoy and that he knew where to find him. McKinney rode with police officers to several locations in an unsuccessful attempt to locate Murray. Later that night, defendant was apprehended. McKinney identified him as McCoy’s assailant.

McCray testified that two days after the shooting, Harvey Jones (Dirty Harvey) offered to give him three shotguns and two handguns if he told the police that Norvel Sparkman shot McCoy.

Chicago police detectives Solecki and Baker testified that after the shooting, McKinney, Wilson and several other youths identified photos of the defendant as the offender.

Defendant denied shooting McCoy. He testified that on the night of the shooting, he and some friends played basketball at a school playground, went to a friend’s house, went' to a neighborhood “mini mart” and later walked around the neighborhood, where he met and spoke with more friends. Defendant asserted further that he and several of his friends then went to a White Castle for hamburgers. From 10:30 to 11:30 p.m, defendant and his friends attended a party at a local Catholic school. Defendant then spoke with a friend for about an hour, after which the friend drove him home. Defendant denied that he had been in a red Chevrolet Monte Carlo or a brown Ford Maverick earlier that night.

After defendant arrived home, he spoke for a short time with his mother and his stepfather, a Chicago police officer, who told him that he should go to the police station. There, police detectives interviewed him for several hours, and then took him to the lockup. Later, one of the officers performed a gunshot residue test on him.

Defendant further testified that he had been close friends with McCoy. He explained that he had been to McCoy’s house at least 10 times and that he used to play softball with him.

Lucius Campbell testified that on the evening of February 6, 1987, at approximately 9 p.m., he saw “Speedy D,” Anthony Murray (defendant’s brother), and Norvell Sparkman riding in a brown Ford Maverick. Campbell stated that one of the youths threw a golf club from the car which hit him in the right eye. Campbell later heard two gunshots, but he did not hear gunshots coming from, or see guns pointed out of, the Maverick. Instead, he testified that just before he heard the gunshots, he saw a maroon or red car being driven down, one of the adjacent streets.

Tony Fleming testified that on the evening in question, at approximately 9 p.m, he, Joe Howard, and the defendant stopped to talk with Melanie and Alisa Long at 107th and Cottage Grove. The youths then went to a party several blocks away, then to a White Castle, and then to another party. Fleming and Howard then took a bus home; the defendant told them that he was also going home. Fleming stated that at no time during the evening did they ride about in either a Monte Carlo or a Maverick.

Howard testified that during the evening of February 6, 1987, he, Anthony Murray, and defendant attended a party at a neighborhood Catholic school. Howard denied that the group was in an auto at any time that night, and denied being in the vicinity of 117th and Wentworth. At approximately 11 p.m., Howard and Anthony Murray left the defendant and took a bus home.

Kenna Starks testified that on February 6, 1987, at approximately 10:20 p.m. Norvell Sparkman arrived at the party she was attending. While she and Harvey Jones were dancing with one another, they overheard a conversation between Sparkman and “Mike.” The State, on hearsay grounds, objected to this line of questioning. The trial court sustained the State’s objection.

Alisa and Melanie Long testified that on February 6, 1987, at approximately 8:30 p.m., they spoke to the defendant and his friends at the corner of 107th and Cottage Grove. Although another car approached the group, the sisters indicated that the defendant did not enter the other car.

Harvey Jones, Lee McCullum, and Darryl Washington testified that on February 8, 1987, they were in Washington’s car discussing McCoy’s death with McCray. During this conversation, McCray asked Jones to give him some guns. In return, McCray indicated that he would testify on Murray’s behalf.

Dawana Cohns testified that on February 6, 1987, at approximately 9:30 p.m., Anthony Murray, Sparkman, and “Speedy D” came to her house. Defense counsel attempted to elicit testimony as to why the youths went to Cohns’ house. The State objected, and, after a sidebar, the trial court sustained the State’s objection.

Opinion

On appeal, defendant first argues that the trial court improperly excluded testimony exculpating him and inculpating Norvell Sparkman for the murder of Andrew McCoy. We disagree. The admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing that the court has abused its discretion. People v. Bowel (1986), 111 Ill. 2d 58, 68, 488 N.E.2d 995, 1000.

Generally, if a person declares, outside of the courtroom and not under oath, that he, and not the defendant on trial, committed the crime, this statement is inadmissible as hearsay though the declaration is against the declarant’s penal interest. (People v. Bowel, 111 Ill. 2d at 66, 488 N.E.2d at 752; People v. Tate (1981), 87 Ill. 2d 134, 143, 429 N.E.2d 470, 475.) However, a declaration against penal interest may be admitted where justice requires. People v. Bowel, 111 Ill. 2d at 66, 488 N.E.2d at 752.

In Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, the Supreme Court articulated the criteria to be analyzed in determining whether a declaration against penal interest is admissible. The Chambers Court noted that four factors should be considered in determining whether the hearsay statements were made under circumstances that provided an assurance of reliability: (1) the declarant confessed spontaneously to a close acquaintance shortly after the crime occurred; (2) other evidence corroborated the confession; (3) the confession was self-incriminating and unquestionably against the declarant’s interest; and (4) if there was any question about the truthfulness of the extrajudicial statements, the declarant was present in the courtroom, was under oath, could be cross-examined by the State, and the trier of fact could weigh his demeanor and responses.

In applying the Chambers factors to the instant factual scenario, we conclude that the trial court properly excluded this hearsay testimony. Starks and Jones were prepared to testify that they overheard Sparkman tell “Mike” that “he had just got through gunning some folks,” i.e. McCoy. However, the record does not reveal that Starks and Jones were Sparkman’s close acquaintances. To the contrary, Sparks and Jones were not even parties to the conversation— they apparently overheard these remarks at a party while dancing several feet away from Sparkman. “Mike” did not appear at trial to testify about Sparkman’s inculpatory statement. Neither Sparks nor Jones testified as to the balance of the conversation they overheard.

Although Sparkman’s statement was self-incriminating and was unquestionably against his interest, this statement was not corroborated by other more reliable evidence. As the trial court noted, Starks did not directly inform the police about Sparkman’s remarks. Starks waited several days and then chose to inform the defendant’s stepfather, a Chicago police officer, instead of informing someone presumably less interested in the outcome of the investigation.

Finally, we note that it was the defendant’s duty to call Sparkman to testify at trial. However, the record does not indicate that the defendant asked the trial court to issue a subpoena in order to compel Sparkman’s presence at trial. Thus, as was the case in Bowel, the State did not have an opportunity to cross-examine the declarant, and the trial court was unable to weigh the declarant’s demeanor and responses. Based on the foregoing, we therefore conclude that the trial court did not abuse its discretion in excluding this hearsay testimony because the declaration was not “made *** under circumstances that provide considerable assurance of [its] reliability.” See Chambers v. Mississippi (1973), 410 U.S. 284, 300-01, 35 L. Ed. 2d 297, 311-12, 93 S. Ct. 1038, 1048-49.

We next address the issue of whether the trial court properly ruled that Dawana Cohns’ testimony was inadmissible. Cohns was prepared to testify that on February 6, 1987, at approximately 9:30 p.m., Anthony Murray, “Speedy D,” and Sparkman asked her to hide a gun with which they had just shot a person at 117th and Wentworth. Cohns refused to take the gun. It was not until four days later that she reported the incident to the police.

After reviewing the record, we conclude that the trial court properly excluded Cohns’ testimony about her conversation with Anthony Murray, “Speedy D,” and Sparkman. The record does not disclose whether the youths were Cohns’ close acquaintances; at trial, Cohns merely stated that she knew them. Further, the record does not corroborate whether the youths actually had a gun that night, or, assuming that they did, whether the gun was theirs, whether the gun was actually the murder weapon and, most importantly, why they trusted Cohns enough to request that she dispose of the weapon for them. While the declaration was generally self-incriminating and against the declarants’ interest, it is significant to note that neither Murray, “Speedy D,” nor Sparkman specifically confessed to the shooting. Finally, Cohns did not report the statement to the police until four days later, and as we noted, when she finally did so, she told the defendant’s stepfather, a Chicago police officer, who told her to speak to the investigating officer. Based on the record before us, we agree that the trial court correctly determined that Cohns’ testimony was untrustworthy.

Defendant also argues that the trial court improperly considered the fact that a death occurred as an aggravating factor in sentencing. In response, the State maintains that the defendant waived this argument because he did not raise it at the sentencing hearing and did not include the alleged error in his post-trial motion. We agree with the State’s position on this issue. Our review of the record reveals that the defendant’s attorney did not object at the sentencing hearing, and did not raise this issue in either his original or amended motion for a new trial. Because the defendant did not present this issue below, we therefore deem it waived. People v. Compton (1990), 193 Ill. App. 3d 896, 550 N.E.2d 640; People v. Diaz (1989), 189 Ill. App. 3d 473, 545 N.E.2d 399.

Even assuming for the sake of argument that the defendant did not waive this argument, we note that the trial court has considerable discretion in imposing a sentence (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344), and, where the sentence imposed is within the statutory limits, a reviewing court will not exercise its power to reduce the sentence absent a finding that the trial court abused its discretion. (People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708.) Also, the trial court is in a superior position during the trial and the hearing in aggravation and mitigation to determine the punishment to be imposed than are courts of review. People v. Cabrera, 116 Ill. 2d at 494, 508 N.E.2d at 405.

In the case at bar, the trial court properly noted that McCoy’s murder was gang related and that the victim and his friends did not provoke the attack. After considering the nature and circumstances of the crime, we cannot say that the trial court abused its discretion in sentencing the defendant to 30 years’ imprisonment.

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

Judgment affirmed.

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

      Kenna Starks was prepared to testify that she heard Sparkman tell “Mike” that he “had just got through gunning some folks,” and that he subsequently explained that he meant McCoy. Starks and Jones then stopped dancing, walked over to where Sparkman stood, and listened to the rest of the conversation. The trial court declined to admit Sparkman’s statement as a declaration against penal interest.

      Cohns was prepared to testify that the three youths asked her to hide a gun with which they had just shot a person on 117th and Wentworth. Cohns refused to take the gun. Four days later, she allegedly informed the defendant’s stepfather, a Chicago police officer, about the youths’ visit. Cohns also related the story to the violent crimes police officer in charge of this investigation. The trial court agreed that the statement which Cohns gave the police could be available for the record, but the court declined to admit the statement into evidence.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    WILLIAM GARRISON, Plaintiff-Appellant, v. COMBINED FITNESS CENTRE, LTD., Defendant-Appellee (AMS Strength Systems/Fitness Systems, Inc., et al., Defendants).
    First District (5th Division)
    No. 1-89-0860
    Opinion filed July 20, 1990.

      Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Richard Rogich, and Robert P. Sheridan, of counsel), for appellant.
    French, Kezelis & Kominiarek, P.C., of Chicago (Terry P. Selby, Russell P. Veldenz, and Lynn A. Hirschfeld, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, William Garrison (Garrison), appeals from an order of the circuit court of Cook County granting defendant, Combined Fitness Centre, Ltd. (Centre), summary judgment. The other named defendants, AMS Strength Systems/Fitness Systems, Inc., and Greg Greer, individually and d/b/a Monster Gym Equipment, are not parties to this appeal.

The undisputed facts of the case are as follows.

In July 1983, Garrison became a member of Centre and thereupon began using its facilities and equipment for his regular regimen of exercise and body development. Garrison routinely “worked-out” for periods of 2 to 21k hours, three to four days each week and weight lifting was part of his fitness program.

On March 12, 1985, at about 6:30 p.m. Garrison was exercising at the Centre, using the weight-lifting equipment provided for that purpose. As he prepared to lift a 295-pound bar from the bench press apparatus, he called to a friend to “spot” him. As he did so, the weighted bar rolled off the grooved rest at the top of the bench press and fell onto his neck. Garrison’s trachea was crushed and he continues to suffer permanent and disfiguring injuries.

Garrison filed a complaint on May 5, 1986, an amended complaint on January 12, 1987, and a second amended complaint on September 14, 1987, charging that his injuries were proximately caused by the improper design of the bench press provided to him by Centre. In count I, Garrison alleged, among other things, that Centre “carelessly and negligently owned, operated, managed, maintained and controlled its health club facilities” because it provided a bench press which was not adequate or safe for its intended use. Count II was a strict liability in tort action against the other named defendants, alleging that they designed, manufactured, distributed or sold the defective bench press weight-lifting apparatus that had caused plaintiff’s injuries. According to the complaint, the bench was defective because it lacked an L-shaped safety device for holding the bar in place and, instead, had a groove arrangement from which the bar could easily roll off.

On August 27, 1987, Centre moved for summary judgment, contending that an exculpatory clause contained within the membership agreement signed by plaintiff relieved Centre of all liability for injury arising out of the use of its facilities and equipment. A hearing was held on the motion on February 22, 1989, at which time the trial court ruled in favor of Centre and granted the summary judgment motion. A subsequent order entered on the judgment contained the language set forth in Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), making the order final and appealable.

The sole issue on review is whether the trial court correctly held that Centre’s exculpatory clause was enforceable. Plaintiff argues that

the exculpatory clause was not intended to encompass or should not encompass, for public policy reasons, injuries proximately caused by defective equipment provided for a member’s use. We agree with the trial court’s conclusion and so we affirm the summary judgment order.

The exculpatory clause involved in the present case is as follows:

“It is further agreed that all exercises including the use of weights, number of repetitions, and use of any and all machinery, equipment, and apparatus designed for exercising shall be at the Member’s sole risk. Notwithstanding any consultation on exercise programs which may be provided by Center employees it is hereby understood that the selection of exercise programs, methods and types of equipment shall be Member’s entire responsibility, and COMBINED FITNESS CENTER shall not be liable to Member for any claims, demands, injuries, damages, or actions arising due to injury to Member’s person or property arising out of or in connection with the use by Member of the services and facilities of the Center or the premises where the same is located and Member hereby holds the Center, its employees and agents, harmless from all claims which may be brought against them by Member or on Member’s behalf for any such injuries or claims aforesaid.”

Plaintiff contends that by signing the membership contract which contained the above exculpatory clause, he did not contemplate that he would be relieving defendant from liability for injury stemming from defective equipment and that the enforcement of an exculpatory clause in the context of a product liability action would be violative of public policy. We find plaintiff’s arguments to be without substantive merit when viewed in context of current Illinois law.

According to Illinois law, a party may contract to avoid liability for his own negligence and, absent fraud or wilful and wanton negligence, the contract will be valid and enforceable unless: (1) there is a substantial disparity in the bargaining position of the two parties; (2) to uphold the exculpatory clause would be violative of public policy; or (3) there is something in the social relationship between the two parties that would militate against upholding the clause. (Schlessman v. Henson (1980), 83 Ill. 2d 82, 413 N.E.2d 1252; Calarco v. YMCA (1986), 149 Ill. App. 3d 1037, 501 N.E.2d 268; Larsen v. Vic Tanny International (1984), 130 Ill. App. 3d 574, 474 N.E.2d 729.) The rationale for this rule is that courts should not interfere with the right of two parties to contract with one another if they freely and knowingly enter into the agreement. Harris v. Walker (1988), 119 Ill. 2d 542, 548, 519 N.E.2d 917; Larsen, 130 Ill. App. 3d at 576.

By the same token, however, an exculpatory clause, to be valid and enforceable, should contain clear, explicit, and unequivocal language referencing the types of activities, circumstances, or situations that it encompasses and for which the plaintiff agrees to relieve the defendant from a duty of care. (Calarco, 149 Ill. App. 3d at 1040.) In this way the plaintiff will be put on notice of the range of dangers for which he assumes the risk of injury, enabling him to minimize the risks by exercising a greater degree of caution. (Neumann v. Gloria Marshall Figure Salon (1986), 149 Ill. App. 3d 824, 827, 500 N.E.2d 1011; Larsen, 130 Ill. App. 3d at 578.) The precise occurrence which results in injury need not have been contemplated by the parties at the time the contract was entered into. (Sehlessman v. Henson, 83 Ill. 2d at 86.) It should only appear that the injury falls within the scope of possible dangers ordinarily accompanying the activity and, thus, reasonably contemplated by the plaintiff. Larsen, 130 Ill. App. 3d at 576-77.

In the present case plaintiff’s signature on the membership agreement was not obtained by fraud, nor did a special relationship or unequal bargaining position exist. (See Harris v. Walker (1988), 119 Ill. 2d 542, 519 N.E.2d 917.) Furthermore, the exculpatory clause could not have been more clear or explicit. It stated that each member bore the “sole risk” of injury that might result from the use of weights, equipment or other apparatus provided and that the selection of the type of equipment to be used would be the “entire responsibility” of the member.

Garrison’s deposition reveals that the Centre provided two types of bench presses, the one on which Garrison was injured, and another that contained the L-shaped safety device which plaintiff now contends should have been present on the defective bench press. Although Garrison was not a professional weight lifter, he was also no neophyte, having had instruction and experience in weight lifting. Because of his experience, Garrison was aware of the variation in the features between the two bench presses, he chose to use the bench press that did not contain the safety device and was injured. Additionally, Garrison was aware of the attendant dangers in the activity and, despite the fact that plaintiff now alleges that the bench press he used was unreasonably unsafe because it lacked a certain safety feature, the injury he sustained clearly falls within the scope of possible' dangers ordinarily accompanying the activity of weight lifting. Unlike Larsen, Garrison’s injury was of a type that would normally be contemplated by the parties at the time the contract was made and, therefore, it clearly falls within the parameters of the exculpatory clause. The alleged defective design is more a function of the manner in which the injury occurred, which need not have been contemplated by the parties. Schlessman v. Henson (1980), 83 Ill. 2d 82, 413 N.E.2d 1252.

As an aside we note that an exculpatory clause might not always function to relieve a defendant from liability stemming from its provision of defective equipment. Perhaps, if a plaintiff could show that the quality or integrity of the equipment provided was extremely inferior, supplying it to the public could be deemed wilful and wanton negligence. However, this was not alleged by plaintiff here, nor do the facts support such a claim.

We also find no validity in Garrison’s claim that upholding an exculpatory clause in the context of a product liability action would be against public policy. First of all we note that, despite the fact that plaintiff brought a strict liability in tort action against other defendants, the suit against Centre was a negligence action. In fact, plaintiff could not have brought a product liability action against Centre because it is not a “seller” within the meaning of the statute. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(a)(4).) Furthermore, even if plaintiff had been able to bring such an action against Centre, our statutes provide a method whereby Centre, as a party who is not the manufacturer of the allegedly defective product, may defer liability to the manufacturer. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621.) This statutory provision indicates a legislative intent to restrict, rather than expand, the concept of strict liability as to nonmanufacturing parties. Consequently, we do not feel that upholding an exculpatory clause to relieve a nonmanufacturing party from liability which may result from its negligence in purchasing and making available an allegedly defective product would be violative of public policy concerns.

The summary judgment granted to Centre by the circuit court is affirmed.

Affirmed.

COCCIA, P.J., and LORENZ, J., concur.


author: JUSTICE McNAMARA

text:
    BENJAMIN F. MOORE, Plaintiff-Appellee, v. THE DEPARTMENT OF DRIVER SERVICES et al., Defendants-Appellants.
    First District (6th Division)
    No. 1-89-1622
    Opinion filed July 20, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Linda J. Hay, Assistant Attorney General, of Chicago, of counsel), for appellants.

      Julius Lucius Echeles, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Benjamin F. Moore, sought review pursuant to the Secretary of State Merit Employment Code (Ill. Rev. Stat. 1987, ch. 124, par. 101 et seq.) of a notice of proposed discharge which was issued to him by defendant Illinois Secretary of State Department of Driver Services (Department). Following a hearing, a hearing officer recommended that Moore be discharged. Plaintiff filed exceptions to the recommended decision with defendant Illinois Merit Commission of the Secretary of State (Commission). The Commission agreed with the hearing officer’s recommended decision to discharge Moore. On administrative review (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.), the trial court reversed the decision of the Commission.

In February 1988, Moore received a notice of proposed discharge from the Department. The notice charged that Moore had: unlawfully and without authority solicited $500 for a fraudulent driver’s license from Mary Woolery; unlawfully and without authority completed a driver’s license application in the name of Gary C. Young for Gralyn Simpson without obtaining or reviewing proper identification; conspired with Eugene Richardson, Eddie Jones, Andrew Farmer and James Cokely to prepare and issue fraudulent driver’s licenses to Mary Woolery, Gralyn Simpson and other persons in return for various amounts of money; and neglected his duties as a public service supervisor by participating in, allowing to occur and failing to report the illegal sale of fraudulent driver’s licenses, and by failing to properly supervise his subordinates.

Initially, we note that two of the foregoing charges are not involved in this appeal. The hearing officer found that the charge that Moore had completed a fictitious license application in Simpson’s behalf and that the charge of conspiracy had not been proved. The officer based his rulings on the basis that Simpson was a deceptive witness and, accordingly, that Simpson’s testimony was incredible. The Department does not appeal these rulings and, therefore, the testimony concerning those charges will be discussed only to the extent it affects the charges at issue in this appeal.

At the hearing, Moore testified that on February 1, 1988, he was employed as a driver’s license facility supervisor at the Charles Chew, Jr., facility. Moore had been a Department employee for 14 years and had been a supervisor for 11 of those years. Moore’s responsibilities as a supervisor included handling day-to-day operations of the facility, employees, evaluations, and accounting procedures. Additionally, he wrote up applications, checked identification and handled general problem solving. On occasion, Moore administered written tests and eye tests.

Moore stated that the correct procedure for issuing a driver’s license required that a Department employee review an applicant’s identification. He testified that a supervisor may have the authority to issue a license without the proper identification. He indicated that this was a longstanding practice. If an applicant did not have the proper physical identification, Moore would make telephone calls, check computer records, or somehow verify that the applicant was telling the truth. Moore had issued licenses in this manner on 400 to 500 occasions.

Mary Woolery, a special agent for the Illinois State Police, Department of Criminal Investigations, testified that she first visited the Chew facility on March 24, 1987, with Andrea Harris. She went there in order to plan the purchase of a fictitious driver’s license which would include her photograph along with a false name and address.

Woolery stated that on March 24, she and Harris met with James Cokely, an examiner, and Eugene Richardson, a supervisor at the facility. The two women brought a television set with them. The television set had been purchased by the police and was to be given to another Department employee, Gloria Williams, as payment for a previously purchased fraudulent driver’s license. Cokely took the set out of Woolery’s car. Woolery saw Moore on March 24, but she did not meet with him. She observed Harris meet and talk with Moore, but could not hear the conversation.

On March 25, Woolery and Harris returned to the Chew facility to purchase a fraudulent driver’s license. They met with Richardson, and then Harris and Moore conversed. On this occasion, Woolery was able to hear their conversation. She heard Moore say that “John was all over him today and he can’t do anything today.” She saw Moore give Harris a piece of paper, and heard Moore tell Harris to call him later. Harris gave Woolery the slip of paper, which had a Chew facility telephone number on it.

On March 26, Woolery returned to the Chew facility. Another agent was with her, but remained in the car while Woolery went inside. Woolery met with Moore in the parking lot between the two buildings which housed the facility. Woolery asked Moore if “he could do anything today.” Moore replied that he could not because there were a lot of things going on around the facility. Woolery asked when would be a better time, and Moore responded that he did not know, but that he could not do it that day. She asked if she could contact him at another time, and he replied that she could do so. Woolery did not at any time give Moore money for a fraudulent driver’s license.

Harris also testified at the hearing. She explained that she had become involved in this investigation after being stopped by a police officer with a fictitious driver’s license in her possession. In exchange for her cooperation in the investigation, the Secretary of State, through Special Agent Frank Murphy, gave her $100 for every fictitious license she bought. Harris stated that she had been convicted of forgery in the past and was currently incarcerated on pending forgery charges to which she had pleaded guilty. Harris stated that she had not been promised anything in return for her testimony.

Harris testified that she knew Moore because she had bought fraudulent licenses previously at the Chew facility. She never paid Moore directly for these licenses. Harris stated that on March 24, 1987, she and Woolery went to the Chew facility. They brought $500 to purchase a fraudulent license, and a television set which Harris owed to Williams as payment for a previously purchased fictitious license.

Harris stated that when she and Woolery arrived, Harris met with Cokely and told him that she wanted to do some business and to straighten out her tab with Williams. Cokely informed her that Williams was angry about the television set and felt that Cokely, Richardson and Moore owed Williams some money for providing Harris with a license. Cokely then brought Richardson to meet with Harris and Woolery. Richardson left shortly thereafter, explaining that he had to talk to Moore. When he returned, Moore was with him. Moore told Harris that Williams was angry about the television. Harris told Moore that the television was in her car. She told Moore that she wanted to keep doing business and also asked him how much the license would be. Moore told her it would be $500. Harris did not give Moore the $500, and Moore did not give her a fictitious driver’s license. Harris later purchased a fictitious driver’s license from Cokely and Richardson for $500. Moore was not present during the transaction.

Special Agent Murphy testified that he and another agent interviewed Moore at the Chew facility on January 22, 1988. They read Moore his rights, and Moore agreed to talk to them. Moore indicated that he was not aware that fraudulent license sales currently were occurring at the facility. Murphy showed Moore a group of photographs of women. Moore recognized Woolery’s picture and said that he might know her because he thought she was the woman he had told not to hang around the facility.

Murphy stated that Moore told him he had no authority to write up a license application without checking the applicant’s identity. Moore also stated that three forms of identification generally are required, but in special cases, two forms are sufficient when the applicant is known by the supervisor or the employee. Moore told Murphy that he would never write up an applicant without at least two forms of identification and verification.

When asked about the conversation with Murphy, Moore stated that he told Murphy the application requirements sometimes were waived. Moore also informed Murphy that he had reported certain rumors that a fictitious license had been sold in 1986 or 1987. Moore stated Murphy had acknowledged that Moore had done so.

With regard to the charges involved in this appeal, the hearing officer found that the Department proved that Moore had indirectly solicited $500 from Woolery. Additionally, the hearing officer found that Moore had failed to report suspicions regarding the illegal sale of fraudulent licenses and the illegal sale transaction involving the television set. The Commission adopted the hearing officer’s findings except that the Commission found that Moore had no duty to report rumors.

We believe that a fundamental error occurred in that there was a substantial variance between the administrative charges against Moore and the proof presented at the hearing. As to the first charge, Moore was accused of soliciting $500 from Woolery in exchange for a fraudulent license, yet the proof adduced at the hearing established that Moore never solicited $500 from Woolery. The trial court noted that this variance was key and serious. In fact, the trial court believed the variance to be a denial of due process and, therefore, to be fatal to the claim. The court nevertheless based its decision to reverse the Commission’s decision on its conclusion that the Commission’s findings were contrary to the manifest weight of the evidence.

We hold, however, that the variance between the charge and the proof adduced at the hearing denied Moore procedural due process and requires reversal of the Commission’s finding that Moore was guilty of soliciting a bribe from Woolery.

Procedural due process in an administrative proceeding does not require a proceeding in the nature of a judicial proceeding but is satisfied by a form of procedure that is suitable and proper for the nature of determination to be made and conforms to fundamental principles of justice. (Telcser v. Holzman (1964), 31 Ill. 2d 332, 201 N.E.2d 370.) In administrative proceedings, a complaint need not state the charges with the' same refinements and selectivity as a complaint in a court of record. (Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 519 N.E.2d 1151; Irving’s Pharmacy v. Department of Registration & Education (1979), 75 Ill. App. 3d 652, 394 N.E.2d 627.) Nonetheless, an administrative complaint must reasonably apprise the party of the case against him so that he will be able to intelligently prepare his defense. Talman v. Department of Registration & Education (1979), 78 Ill. App. 3d 450, 397 N.E.2d 151; see also 107 Ill. 2d R. 133(a).

Here, the charge filed against Moore, alleging that he had solicited $500 from Woolery, did not reasonably apprise him of the case against him. On March 24, 1987, Woolery and Harris went to the Chew facility and brought with them $500 to purchase a fraudulent license for Woolery, and a television set to pay another employee for a previously purchased fraudulent license. According to Harris, she met with Moore and he told her that a license would be $500. Woolery was not present at this meeting. The next day, Woolery and Harris returned to complete the transaction. Woolery heard Moore tell Harris that he could not do anything that day. Moore gave Harris a piece of paper with a Chew facility telephone number on it. No transaction occurred. Woolery returned to the facility the following day and asked Moore if he could do anything for her. He said that he could not because there were a lot of things going on, but he told her she could contact him at another time. Again, however, no transaction occurred. Thus, Moore met with Woolery only once. He did not discuss with her the price of a fictitious license or accept $500 in exchange for a fictitious license. At no time did Woolery pay Moore $500 for a fraudulent license.

The Department’s case against Moore varies significantly from the charges which it filed against him and denied him due process of law. The charge that Moore solicited $500 from Woolery cannot be said to have reasonably apprised him of the case against him when that case involved proof that he solicited a bribe from Harris. The substance of the two situations is distinct and a charge outlining one situation could not have informed Moore of the conduct involved in the other. (See Northtown Ford v. Human Rights Comm’n (1988), 171 Ill. App. 3d 479, 525 N.E.2d 1215 (stating that an amended charge adequately apprised defendant of the charges against him when the substance of the action alleged remained the same); Slager v. Pollution Control Board (1981), 96 Ill. App. 3d 332, 421 N.E.2d 929 (stating that a charge which incorrectly defined refuse as “garbage and other discarded materials” rather than as “hazardous wastes, liquid wastes and sludges” adequately apprised defendant of the case against him as the charge specifically informed the defendant of the manner in which his conduct was alleged to violate the Environmental Protection Act).) We do not believe that Monroe was able to intelligently prepare his defense with respect to that charge. See Wierenga v. Board of Fire & Police Commissioners (1976), 40 Ill. App. 3d 270, 352 N.E.2d 322 (stating that plaintiff could not be discharged for violating a section of the municipal code when the statutory violation was neither alleged in the charges filed against plaintiff, nor mentioned at the hearing).

Accordingly, we find that the trial court properly reversed the Commission’s determination that Moore solicited a bribe from Woolery.

With regard to the remaining charge, that Moore was derelict in his duties as a public service supervisor, we find that there was also a failure of proof. The charge that Moore was derelict in his duties because of his failure to report the illegal sale of fraudulent licenses is not supported by the record.

The charge provided as follows:

“That you were, at various times between at least January 1, 1987, and continuing until January 21, 1988, derelict in your duties as a Public Service Supervisor in the Chicago South facility by participating in, allowing to occur, [sic] to properly supervise you [sic] subordinates, and failing to report the illegal sale of fraudulent Illinois drivers license ***.”

The hearing officer determined that the charge had been proved by evidence that Moore was suspicious of certain employees and had failed to report his suspicions, and that he was made aware of an illegal transaction involving another employee and a television set but had failed to report the transaction. The Commission limited the hearing officer’s conclusion and found only that Moore had a duty to report the conversations he had with Harris regarding the television set transaction and the price of a driver’s license.

Even if we were to assume that Harris’ testimony was credible, and in view of her past record and her taking of the fifth amendment during her testimony that is difficult, her testimony does not establish the charge of failing to report the illegal sale of fraudulent driver’s licenses. (See Prince Manufacturing Co. v. United States (E.D. Ill. 1977), 437 F. Supp. 1041 (burden of poof is on complainant in a complaint proceeding before an agency).) The conversation regarding the television set was in no way connected to any such sale. The testimony merely established that Moore knew Williams was angry about a television set. There was no testimony that Moore was informed of the underlying transaction. Furthermore, although Harris testified that she asked Moore how much a license would be, and that he replied $500, this conversation, even if true, does not establish that a sale occurred. And, although Harris testified that she purchased a fictitious license from Cokely and Richardson later that day, she did not testify that Moore was in any way involved in that transaction. Rather, Harris testified that Moore would not agree to the sale of a fictitious license on either day. Thus, the testimony did not establish that Moore sold a license or that he was aware of any such sale. Moore cannot be said to have failed to report a sale which never occurred, nor can he be said to have failed to report a sale of which he was not aware.

We find that the trial court properly reversed the Commission’s decision to discharge Moore based on dereliction of his duties as a Public Service Supervisor. Because we have so concluded, we need not determine whether there was a sufficient basis for the conclusion that cause for discharge existed.

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

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE JOHNSON JUSTICE JIGANTI,

text:
    MARVIN JONES et al., Plaintiffs-Appellants, v. PAUL SHALLOW, Defendant-Appellee (James Williams et al., Defendants).
    First District (4th Division)
    No. 1-89-1941
    Opinion filed July 12, 1990.

      JIGANTI, J., dissenting.
    Adrian E. Mazar, of Chase & Werner, of Chicago, for appellants.
    Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago (James R. Picker, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, Marvin Jones, Lisa Logan, and Johnnie Lee Ross, bring this appeal from the circuit court’s order dismissing their cause of action against Paul Shallow, defendant, for failure to exercise due diligence in obtaining service of process on defendant Shallow. Plaintiffs claim that the trial court abused its discretion in dismissing the action.

We affirm.

The underlying action arose when plaintiffs allegedly sustained personal injuries in an automobile accident that occurred on July 14, 1985. On May 22, 1987, the complaint was filed and summons was issued to be served on defendant Shallow at the address given by Shallow to plaintiffs at the accident scene. Summonses were also directed to be served on Shallow’s two codefendants, but they are not involved in this appeal. The summons directed to Shallow was returned “not served” for lack of contact on June 12, 1987. Approximately three months later, an alias summons was issued directed to defendant at another address. This summons was also returned bearing the notation “N.S.” Plaintiffs then began an investigation in hopes of finding defendant’s correct address. One telephone number was traced, but it failed to reveal defendant’s address. Finally, just over six months after the alias summons was returned unserved, plaintiffs sent a letter to the Secretary of State requesting defendant’s current address. Within two weeks, the Secretary of State’s office supplied plaintiffs with a report giving defendant’s correct address. The report also indicated that a driver’s license had been issued to defendant at that address prior to the date plaintiffs filed this action. A second alias summons was served on defendant on June 28, 1988, 13 months after the complaint was filed. One month later, defendant filed a motion to dismiss based on plaintiffs’ lack of due diligence in service of process following expiration of the statute of limitations. Plaintiffs’ attorney filed an affidavit in opposition to defendant’s motion in which he indicated that he had possessed two addresses for defendant: one address was given plaintiffs by defendant at the scene and one was contained in the police report. The court granted defendant’s motion and dismissed plaintiffs’ cause of action as to defendant Shallow. The plaintiffs appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

Supreme Court Rule 103(b) provides, inter alia, that an action be dismissed with prejudice where a plaintiff’s failure to exercise due diligence to obtain service occurs after the expiration of the applicable statute of limitations. (107 Ill. 2d R. 103(b).) The purpose of the rule is to “protect defendants from unnecessary delays in the service of process” upon them. Greenwood v. Blondell (1980), 85 Ill. App. 3d 186,188.

A motion to dismiss pursuant to Rule 103(b) is addressed to the sound discretion of the trial court and will not be disturbed on review absent an abuse of discretion. (North Cicero Dodge, Inc. v. Victoria Feed Co. (1987), 151 Ill. App. 3d 8609.) The standard for determining diligence is one of reasonableness, and the plaintiff bears the burden of demonstrating that he has exercised such diligence. (Hanna v. Kelly (1980), 91 Ill. App. 3d 896.) In determining whether a plaintiff has exercised due diligence, the factors the court considered include (1) the length of time used to obtain service; (2) the plaintiff’s activities in attempting to effectuate service; (3) the plaintiff’s knowledge of the defendant’s location; (4) the ease with which defendant’s location could have been ascertained; (5) the defendant’s actual knowledge of the pending action; and (6) special circumstances which would affect the plaintiff’s efforts. Semersky v. West (1988), 166 Ill. App. 3d 637, 642.

Here, plaintiffs filed their complaint and issued the original summons just weeks before the expiration of the statute of limitations. Following the return of the second unanswered summons, plaintiffs spent six months tracing one telephone number and making some telephone calls. The plaintiffs could have easily discovered defendant’s address through the Secretary of State’s office during that time rather than using that avenue only as a last resort. We find that the trial court did not abuse its discretion in dismissing plaintiffs’ action against defendant. See Womick v. Jackson County Nursing Home (1990), 137 Ill. 2d 371, 380 (no abuse of discretion in dismissing action after expiration of statute of limitation); cf. Segal v. Sacco (1990), 136 Ill. 2d 282, 288 (abuse of discretion in dismissing action where plaintiff’s 19-week delay was inadvertent).

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

Affirmed.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

I respectfully dissent. We are called upon to determine whether or not the plaintiff exercised “due diligence” in obtaining service on the defendant Paul Shallow. While I agree with the majority’s general statements of the law as they relate to this issue, on balance I would come to the opposite conclusion.

The following is a chronology of events.

7/14/85 Date of the occurrence.
5/22/87 Suit filed.
5/22/87 Summons issued to defendant Shallow at 10216 South Fairfield, Chicago. This was the address that the defendant gave to the plaintiff at the scene of the occurrence.
6/12/87 The sheriff’s return shows “Not Served.”
9/17/87 Alias summons was issued for 10615 South Hale, Chicago. This was the address on the police report.
11/9/87 The plaintiff checked the alias summons and found it had not been served and contained the notation “not at this address.” The return itself is not in the record and the actual date of the return is not noted.
2/5/88 Answers to Interrogatories from a codefendant, Willie Griffin, listed Shallow’s address on Hale.
5/26/88 Plaintiff requested the Secretary of State to provide the current information on Paul Shallow.
6/7/88 The plaintiff received a report from the Secretary of State showing the defendant’s address in Woodridge, in Du Page County, Illinois.
6/15/88 An alias summons was issued at the Woodridge address.
6/28/88 Defendant was served.

While the affidavit is not entirely clear, it appears that after the alias summons was returned without service, the plaintiff’s law clerk traced the telephone number that had been given to the plaintiff by Shallow at the scene of the occurrence and obtained a corresponding address. An alias summons was prepared for the address in Chicago that corresponded to the telephone number, but telephone contact was made with the person who had that telephone number and it was determined that that person was not at all acquainted with Paul Shallow.

The due diligence rule is designed to ensure that justice is rendered promptly. (O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322; Womick v. Jackson County Nursing Home (1990), 137 Ill. 2d 371.) Also it is designed to protect defendants from unnecessary delay or the circumvention of the statute of limitations. (Segal v. Sacco (1990), 136 Ill. 2d at 286.) Dismissal is a harsh penalty which is justified when the defendant is denied a fair opportunity to investigate the circumstances of his alleged liability. Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, 289-90,122 N.E.2d 540; Segal v. Sacco, 136 Ill. 2d at 288.

While not a textbook example of due diligence, the plaintiff exercised a sufficient amount of diligence to avoid the harsh result of dismissal of his lawsuit. On the date of the occurrence the plaintiff was given Shallow’s home address on Fairfield in Chicago. The police report, however, contains a different address, one on Hale, also in Chicago. The plaintiff, upon the filing of the lawsuit, immediately attempted to serve the defendant on Fairfield and when not successful, a short time later attempted to serve the plaintiff on Hale. While attempting to serve process, the suit was pursued against the codefendants, one of whom answered interrogatories listing Shallow’s address, as did the police report, on Hale. With respect to these events, the plaintiff proceeded with reasonable diligence. The plaintiff’s conduct after checking the service of the alias summons, however, was not satisfactory. Ignoring the obvious recourse of checking with the Secretary of State, while attempting to check out the telephone number given by the defendant at the time of the occurrence and waiting for answers to interrogatories of codefendants, is not reasonable diligence. However, when the plaintiff’s diligent efforts in attempting immediate service at the addresses provided by the defendant and the police report, and in pursuing the case against the other defendants, are weighed against the minimal efforts made after and until the time that the plaintiff obtained the information from a simple inquiry of the Secretary of State, I do not believe that the extreme penalty of dismissal is warranted.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MICHAEL MALONEY, Defendant-Appellant.
    First District (3rd Division)
    No. 1-88-2603
    Opinion filed July 18, 1990.

      Paul Bradley, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Michael J. Drake, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, James Michael Maloney, was charged with nine counts of criminal sexual assault. The trial court granted defendant’s motion for a directed verdict on three counts alleging that the assault was accomplished by force or the threat of force. Thereafter, defendant was convicted by a jury of the remaining counts. The trial court sentenced defendant to five years’ imprisonment. He appeals his convictions.

The State’s witnesses testified as follows.

THE VICTIM’S MOTHER

The victim’s mother (hereinafter C.M.) and the victim, a then 15-year-old “multiple handicapped” and severely “learning disabled” male (hereinafter S.M.), went to a laundromat at 2861 North Clybourn in Chicago in the early afternoon of August 20, 1987. C.M. and S.M. were sitting in the laundromat waiting for their washing to be done. Defendant sat next to S.M. At that time, S.M. was showing defendant a “Bugs Bunny” book and talking to him. After approximately 20 minutes, C.M. got up to remove her laundry from the washer. When C.M. turned around, after removing all of her clothes, and realized that S.M. “wasn’t there,” she called out for him. “[T]he people there said he went to the washroom with that man.” C.M. then yelled for S.M. again. As C.M. started going toward the bathroom, S.M. came running out and said, “[Mjommie, that man sucked my prick, I mean my dick.” At that time, defendant emerged from the bathroom, saying that he had not done anything to S.M. He then went to the washing machines, removed all of his wet clothes, “took the cart and ran across the street.”

C.M. called the police. She had to calm S.M. down because he was hysterical and then took him outside. The police arrived within 10 minutes. C.M. and S.M. then went around the block with the police looking for the assailant but did not find him. Upon returning to the laundromat, C.M. spoke with a young Spanish girl. After their conversation, C.M., S.M. and the police officers went to 2848 North Clybourn. C.M. and S.M. waited downstairs while the police went to the third floor. After a few minutes, the police descended to get the building manager. When the police found the manager, they, C.M. and S.M. went to the third floor. Thereafter, the manager “unlocked the door and [defendant] was in the apartment sitting there with his wig on.” C.M. recognized defendant but said, “[H]e is wearing a wig.” C.M. “knew he had a wig on but [she] didn’t forget his face.” S.M. did not identify defendant. C.M. thought S.M. was afraid. She described defendant as wearing a green and white shirt, beige pants and hat in the laundromat. C.M. had never seen defendant before August 20, 1987.

On August 25, C.M. and S.M. were taken to the police station by Detectives Kurth and Gavin. The detectives had called C.M. and told her that they were going to arrest “the preacher — the man, the defendant.”

On cross-examination, C.M. reiterated that she identified defendant to the police on August 20 upon seeing him in his apartment. She denied telling the detectives that she was unable to identify the man in the laundromat. She also denied, and stated she could not remember telling the detectives, that she had seen only the back of the head of the man in the laundromat. She further denied that she was not asked to view the lineup containing defendant because she had told the detectives she could not identify S.M.’s assailant. C.M. admitted that the police did not find any wet clothing in the apartment or a hat, green shirt or beige pants.

THE VICTIM

While in the laundromat on August 20 with C.M., S.M. was showing defendant, who was seated next to him, his “Bugs Bunny” book and asking him about his family, i.e., whether he had a “grandma” and whether she was alive or dead. After C.M. got up to fold the laundry, defendant asked S.M., “[Y]ou want to suck my penis[?]” and S.M. “went along” and said he did not want to, after which defendant told S.M., “[C]ome with me anyways.” S.M. then got up and followed defendant into the bathroom. Upon entering the bathroom, defendant pulled down S.M.’s shorts and sucked his penis. Defendant then inserted a finger in S.M.’s anus. Thereafter, S.M. put his mouth on defendant’s penis then pushed away from it, went out and screamed, “[Mjommie.” Upon observing defendant in his apartment after the arrival of the police, S.M. did not recognize him because, “[H]e looked different, he looked ugly.” Defendant had worn green pants, a green shirt and a green cap in the laundromat.

On cross-examination, S.M. admitted telling the police that he did not recognize defendant upon seeing him in his apartment but maintained that his mother had done so. He also admitted that, before viewing the lineup on the 25th, the detectives told him to pick out the man who did “it” to him, as a result of which S.M. knew that somebody in the lineup was the man who had been in the bathroom with him. Finally, S.M. admitted telling the detectives that he had not put his mouth on his assailant’s penis.

PENNY WILCOX

She was in the laundromat on Clybourn in the afternoon of August 20, 1987, along with a friend named Katherine, S.M., C.M. and defendant. Defendant was sitting next to S.M., who was sitting next to C.M. Defendant got up and S.M. followed him into the bathroom. Five minutes after defendant and S.M. entered the bathroom, C.M., who had been tending to her laundry, realized S.M. was gone and began calling out for him. Thereafter, S.M. emerged from the bathroom, “pulling up his shorts,” and defendant emerged, “zipping his pants.” C.M. then asked S.M. what defendant had done to him. S.M. answered that “he sucked my thing and I did his” and asked if he had done anything wrong. Defendant stated that he had done nothing to S.M. He then ran to a washing machine, removed his clothes, put them in a clothes basket and “ran off across Clybourn.”

Wilcox had seen defendant prior to August 20 walking around the neighborhood passing out flags, fliers and candy to the children. Wilcox knew defendant prior to August 20 only as the “Preacher Man.” Defendant dressed like a preacher and wore a hat and a wig. However, on the 20th, defendant wore a pair of beige pants, and a “flowery shirt with green in it.” He also wore a cap but no wig. Wilcox did not stay at the laundromat until the police arrived on August 20. Rather, she spoke to detectives Gavin and Kurth on the 25th between 10 and 10:30 p.m., outside of 2828 N. Clybourn. Later that evening, at about 12:30 a.m., the detectives returned to Clybourn and asked Wilcox if she was willing to go the police station and “pick the man out of the lineup.” At the police station, Wilcox, who viewed the lineup after the victim, identified defendant. Finally, none of Wilcox’ direct testimony was in any way contradicted or impeached by her testimony under cross-examination.

KATHERINE RILEY

She was in the laundromat on Clybourn on August 20. A person named Penny, S.M. and defendant were also in the laundromat. The latter two were reading a “Bugs Bunny” book. Although she did not then know defendant’s name, she had seen him around the neighborhood, “by the bus stop,” “walking the streets” and “by the school sometimes.” Prior to the 20th, Riley had seen defendant “several” and about “five to ten” times. On the 20th, defendant wore a hat, a plaid shirt with a lot of pink, blue and green in it and some jeans, although she was not sure of the latter. Riley saw defendant take S.M. into the bathroom. They were in the bathroom for 5 to 10 minutes. When S.M. and defendant came out of the bathroom, C.M. asked him what he had been doing in the bathroom. S.M. responded that “he sucked me and I sucked him.” Defendant then went to a washing machine and started removing his clothes rapidly. Defendant then ran down Clybourn. On the prior occasions when she had seen defendant, he sometimes wore a wig and sometimes he did not. He also, sometimes, wore a black coat, a wig, a hat and dark glasses. He had flags in his hands all the time. On those occasions when he did not wear a wig, defendant would “probably” wear a hat since he wore hats “all the time.”

On cross-examination, Riley testified that she did not talk to the police because C.M. “went out and the police had *** left and we didn’t see them no more that day.” Riley did not go to the police station within a week or two of the incident because she thought “they had caught him.” It was not until 8 or 10 months later that Riley “had contact with anybody.” During the time Riley was in the laundromat, defendant had come up to her while she was putting a quarter in the dryers and she told him that “the word is excuse me.”

CHICAGO POLICE OFFICER COLLEEN GLEASON

She and her partner responded to C.M.’s call to the police on August 20. Upon entering defendant’s apartment in the course of investigating the call, while S.M. did not know if defendant was his assailant, C.M. “seemed fairly certain” and “was *** quite certain” that defendant was S.M.’s assailant.

On cross-examination, Gleason could not recall whether any clothes fitting the description given by C.M. and S.M. of those worn by S.M.’s assailant -were found in defendant’s apartment. She admitted that no property from the apartment was inventoried by the police. Gleason also could not recall whether any wet clothes were found in the apartment. She did admit, however, that no such clothing was inventoried. Gleason also admitted that she did not include in her report the fact that C.M. had identified defendant. Finally, Gleason admitted that S.M. had not told her that he had placed his mouth on his assailant’s penis and that the assailant had inserted a finger in S.M.’s anus.

CHICAGO POLICE DETECTIVE CARL KURTH

On August 25, 1987, he and his partner became involved in the sexual assault upon S.M. Upon leaving defendant’s apartment building after unsuccessfully attempting to gain entry on August 25, Kurth and his partner ran into some women outside the building, one of whom was Penny Wilcox. The detectives asked the women if they knew who the “Preacher Man” was. Wilcox gave the detectives a response to the question. Thereafter, the detectives returned to the police station and, after examining a listing of unlisted telephone numbers, discovered that a James Maloney resided at 2848 North Clybourn. After calling defendant, the detectives returned to his apartment and, after he opened the door, placed him under arrest. Upon transporting defendant to the police station, the detectives attempted to locate arrestees from other police stations of builds and descriptions similar to defendant’s in order to conduct a lineup. However, their efforts were unsuccessful. The detectives therefore decided to use other detectives in the lineup. Subsequently, Wilcox and S.M. identified defendant out of the lineup.

On cross-examination, Kurth admitted the following. C.M. told him on the 25th that she was unable to identify defendant after seeing him in his apartment on the 20th. That was the reason she did not view the lineup. C.M. also told him that she had seen only the back of the head of the man in the laundromat. Also, S.M. had told him that he had not placed his mouth on his assailant’s penis. The police did not find any clothing “that matched the description” upon searching defendant’s apartment after his arrest. He told the people who were going to view the lineup that the police had made an arrest but did not tell them that “that person would be in the lineup.”

Opinion

On appeal, defendant first contends that the trial court erred in denying his motion to suppress his lineup identifications by S.M. and Wilcox on August 25, five days after the alleged assault. Specifically, relying upon the differences in appearance between defendant and the police officers who participated in the lineup, defendant asserts that the placing of a suspect in a lineup with persons of dissimilar appearance is grounds for suppressing evidence of the lineup identification. (People v. Morris (1970), 131 Ill. App. 2d 443, 266 N.E.2d 444.) Defendant further asserts that he sustained his burden of proving that the procedures used in his lineup were so suggestive that they created a substantial likelihood of irreparable misidentification and were unnecessary under the totality of the circumstances surrounding the lineup. People v. Tuttle (1972), 3 Ill. App. 3d 326, 278 N.E.2d 458.

Preliminarily, we must note what is, in effect, a concession by the State with regard to the burdens which defendant was required to meet to obtain suppression of the lineup identifications. In contrast to the burdens established in Tuttle, the State asserts only that lineup identifications must be suppressed where the procedure used is unnecessarily suggestive and there was a substantial likelihood of misidentification (People v. Sykes (1987), 161 Ill. App. 3d 623, 515 N.E.2d 253). In view of the standard cited by the State, we need not determine whether defendant adequately proved that the procedure used in his lineup, meaning the use of police officers rather than other arrestees, was unnecessary under the circumstances surrounding the lineup.

Applying the standard cited by the State, we find that defendant adequately proved that the procedure used in his lineup was unnecessarily suggestive and that it created a substantial likelihood that defendant might be misidentified from among the other lineup participants as C.M.’s assailant. In short, we believe that the trial court’s denial of defendant’s motion to suppress was manifestly erroneous.

We reach the foregoing conclusions on the basis of the color photograph of the lineup from which C.M. and Wilcox identified defendant. Neither mere words nor a black-and-white reproduction of the photograph can adequately convey the inherent unfairness of the lineup depicted in the color photograph included as an exhibit in the record. Nonetheless, we: (1) will attempt to describe its unfairness in words; and (2) will append to our opinion such a reproduction of the photograph.

The photograph of the lineup reveals the following. Five men, including defendant, participated in the lineup. Defendant occupied the first seat on the viewer’s left. To defendant’s left are three men, all of whom are wearing clean, pressed, white shirts, pressed gray slacks, socks and shoes or boots, and wrist watches. The fourth man to defendant’s left and on the viewer’s extreme right is wearing a clean, pressed, pullover blue shirt, pressed blue jeans, socks and shoes and a wristwatch. In contrast to these four men, defendant is wearing a wrinkled, dark brown and/or extremely soiled shirt which appears to be a nightshirt or woolen undershirt. He is wearing a pair of wrinkled blue slacks and black shoes. He is not wearing socks and no watch appears evident on either wrist. In addition, defendant’s hair, in comparison to the four other men, appears uncombed. In general terms, defendant appears unkempt and disheveled while the four other men in the lineup appear well, if casually, dressed and well groomed.

We find the differences in the appearance of defendant and the four other lineup participants, in terms of manner of dress and grooming, as depicted in the photograph to be so extreme as to be unnecessarily suggestive of defendant as the guilty party. In addition, we find that the seating of three men dressed almost identically to one another immediately next to defendant and between him and the fifth man in the lineup so draws the viewer’s attention to defendant as to greatly exacerbate that suggestiveness. Finally, when the difference in physical size, specifically the weight difference, between defendant and the four men in the lineup is added to the differences between them in the former regards, we find the lineup so suggestive of defendant as the guilty party as to have been improper per se. The lineup procedure in this case all but hung a sign saying “pick me” around defendant’s neck. We do not believe that a court of review must tolerate and condone such police procedures.

We recognize the existence of case law holding, in contrast to Morris, cited by defendant, that participants in a lineup are not required to be physically identical (see, e.g., People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612, cert. denied (1989), 489 U.S. 1100, 103 L. Ed. 2d 943, 109 S. Ct. 1577) and that claims of suggestiveness due to significant differences in the age, size, and appearance of a defendant and other participants in a lineup go to the weight of the evidence, not necessarily its admissibility (see, e.g., People v. Brewer (1983), 118 Ill. App. 3d 189, 454 N.E.2d 1023, cert. denied (1984), 469 U.S. 930, 83 L. Ed. 2d 261, 105 S. Ct. 234). However, we believe that, in this case, those differences are so manifestly extreme that the only possible conclusion we can reach as a court of review is that the lineup was unfair as a matter of law.

Notwithstanding the foregoing conclusion, however, the trial court’s error in failing to suppress Wilcox’ and S.M.’s lineup identifications of defendant does not warrant a reversal of his convictions. In view of the in-court identifications of defendant by C.M., S.M., Wilcox and Riley, we believe that the trial court’s error was harmless beyond a reasonable doubt. A trial free of the lineup identification evidence would not have resulted in an acquittal of defendant. Moreover, we believe the record adequately reveals an independent origin for all of the in-court identifications of defendant, namely the opportunity which all four occurrence witnesses had to see him in the laundromat. The record makes unnecessary a remand for a determination of whether such a basis for those identifications exists.

It is evident from the foregoing that we reject defendant’s related contention that he was not identified beyond a reasonable doubt as S.M.’s assailant. In this regard, we note that, in passing upon this issue, we are required to view the evidence in the light most favorable to the State and cannot reverse defendant’s conviction unless we can say that no rational jury could have found this necessary element of the convictions beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 268, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

Defendant asserts that C.M.’s identification of him as the assailant was worthless because her testimony that she could identify him was false. As conclusive proof of that falsity, defendant cites the testimony of Detective Kurth that C.M. told him that she had been in defendant’s apartment minutes after the incident and could not identify him and that she had seen only the back of his head in the laundromat.

In so arguing, defendant ignores C.M.’s testimony that she recognized defendant as the assailant at his apartment shortly after the incident and that she told the police at that time that she could identify him. He also ignores Officer Gleason’s testimony that C.M. said she was “quite certain” defendant was the man in the laundromat after seeing him in his apartment after the incident. In view of this evidence, we do not agree that C.M.’s in-court identification of defendant was worthless. In this regard, we agree with the State that the jury’s resolution of the issue of identification is subject, on appeal, to the black letter rule that the credibility. of the witnesses, the weight to be given their testimony and the inferences to be drawn therefrom are for the trier of fact. See, e.g., People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 268.

Defendant further asserts that his in-court identification by S.M. was worthless because S.M. was unable to identify him in his apartment shortly after the incident. We cannot agree. It is undisputed that when the police, C.M. and S.M. entered defendant’s apartment, his clothing was different from the clothing S.M.’s assailant had worn in the laundromat. It is also undisputed that defendant was wearing a wig in his apartment which the assailant had not worn in the laundromat. In addition, C.M. testified that S.M. became hysterical after emerging from the bathroom with defendant and that he was scared upon entering defendant’s apartment. In view of these facts, S.M.’s inability to identify defendant in his apartment is understandable. Also understandable from the lack of all of these factors is S.M.’s ability to identify defendant at trial.

Moreover, as a matter of law, a victim’s or witness’ inability to identify a defendant subsequently to, even soon after, the commission of the offense charged does not render incompetent and inadmissible his identification of the defendant at a later lineup or an even later trial. (See People v. Flint (1986), 141 Ill. App. 3d 724, 490 N.E.2d 1025; People v. Rosa (1981), 93 Ill. App. 3d 1010, 418 N.E.2d 124, cert. denied (1982), 455 U.S. 952, 71 L. Ed. 2d 668, 102 S. Ct. 1457; see also United States ex rel. Kosik v. Napoli (7th Cir. 1987), 814 F.2d 1151.) We believe that the weight to be given S.M.’s in-court identification of defendant was for the jury to decide.

Defendant further asserts that, while the identification testimony of Wilcox and Riley was not directly impeached, the length of time it took them to come forward, 5 days and 8 to 10 months, respectively, makes their testimony inherently suspect. Specifically, defendant argues that the length of time it took Wilcox and Riley to come forward reveals that, rather than having seen defendant in the laundromat on August 20, they were convinced of his identity by neighborhood gossip.

Simply put, we find defendant’s argument against the validity of the identification testimony of Wilcox and Riley to be pure speculation and conjecture. There is simply no record evidence, and defendant cites none, to support his “neighborhood gossip” theory. Rather than constituting per se impeachment of their testimony, the length of time it took Wilcox and Riley to tell the police what they knew merely went to the weight to be given their testimony.

In this last regard, defendant asserts that the passage of 8 to 10 months before Riley came forward is a serious negative factor in the weight to be given her testimony. (Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375.) However, we do not find Neil apposite to this case. Neil involved the identification of a rapist by the victim, who had not previously known the defendant. However, the record in this case sufficiently reveals that Riley, as well as Wilcox, were acquainted with defendant prior to the date of the incident. As such, the mere passage of time would not tend to cast as much doubt on either of their identifications of defendant as it did on the victim’s identification in Neil.

Finally, defendant asserts that the identification evidence in this case is totally refuted by the failure of the police to find any corroborative evidence. Specifically, he notes that while S.M.’s assailant wore a shirt variously described as “green and white,” “flowery,” or “plaid” and beige pants, defendant was wearing a black suit when the police, C.M. and S.M. entered his apartment just 20 minutes later. Moreover, he notes that, while the assailant ran out of the laundromat with a cart full of wet clothes, neither the wet clothes nor the clothes worn by the assailant were found in defendant’s apartment.

Obviously, the State would have had a stronger case against defendant had he been found wearing the clothes worn by S.M.’s assailant or had the police otherwise found those clothes and the wet clothes taken from the laundromat by the assailant. However, the short answer to defendant’s argument is that none of the missing articles of evidence were required in order for a rational jury to have found him guilty of the offenses charged beyond a reasonable doubt. As such, the absence of those articles of evidence does not cast a serious doubt upon the State’s witnesses’ identifications of defendant nor fails to produce an abiding conviction of guilt. Finally, we note that 20 minutes, the time it took the police to enter defendant’s apartment, was sufficient time to have changed out of the clothes worn at the laundromat, to secret them and to secret the wet clothes taken from the laundromat.

Next defendant contends that the State failed to prove beyond a reasonable doubt that he knew S.M. was unable to understand the nature of the acts of sexual penetration committed by defendant or to give knowing consent thereto, as required under the criminal sexual assault statute (Ill. Rev. Stat. 1987, ch. 38, par. 12— 13(a)(2)) and as alleged in the counts of which defendant was convicted.

At a hearing to determine S.M.’s competency to testify at trial, evidence was adduced as to his mental abilities and problems. Each party cites testimony from that hearing, and the State also cites S.M.’s testimony at trial, to support its position on the issue of his understanding, or lack thereof, of the nature of the acts he engaged in with defendant and the issue of his knowing consent, or lack thereof, to those acts.

After reviewing that testimony in the light most favorable to the State, we conclude that a rational jury could have found sufficient evidence to prove beyond a reasonable doubt that S.M. was unable to understand the nature of the acts engaged in with defendant or to give knowing consent thereto and that defendant was aware of that inability.

With respect to S.M.’s lack of understanding and inability to knowingly consent, C.M. testified that, although 16 years of age at the time of trial, S.M. had a mental age of seven and attended a school for severely learning-disabled children. With respect to defendant’s knowledge of the statutory factors, the record reveals that he had ample opportunity to assess S.M.’s limited mental capacity prior to asking S.M. to accompany him to the bathroom. Firstly, defendant encountered a 15-year-old male reading a “Bugs Bunny” comic book. Secondly, S.M. engaged defendant in what the State aptly describes as “child-like” conversation in which S.M. asked defendant about his family, whether he had a “grandma” and whether she was alive or dead. Thereafter, defendant asked S.M. to accompany him to the bathroom and, after he initially declined to do so, asked S.M. to accompany him “anyway,” which S.M. did without protest.

The foregoing evidence provided an ample basis for a rational jury to conclude that the State had made either of the showings required under the criminal sexual assault statute. In fact, we believe that the whole scenario of the contact between defendant and S.M. clearly reveals that defendant sought to take advantage of S.M.’s reduced mental abilities after becoming aware of them during his conversation with him.

Defendant cites People v. Blunt (1965), 65 Ill. App. 2d 268, 212 N.E.2d 719, in support of his assertion that S.M. knew the nature of the acts engaged in with defendant or could knowingly consent to them. Blunt involved an alleged rape based on mental derangement or deficiency which prevented the giving of effective consent to intercourse. The victim in Blunt was a 23-year-old woman with an I.Q. between 71 and 78. In passing upon the extent of mental deficiency or derangement required under the rape statute involved, the court stated, “Mere mental derangement or *** deficiency is not enough. Its thrust must be of sufficient magnitude to throttle effective consent.” (Blunt, 65 Ill. App. 2d at 273.) In deciding whether the victim was so mentally deficient or deranged as to have been unable to give effective consent to the intercourse, the court concluded that the record evidence attributed to her the intelligence to understand the act, “its nature and possible consequences.” Blunt, 65 Ill. App. 2d at 274.

Blunt is of no assistance to defendant in showing that S.M. knew the nature of the acts engaged in or knowingly consented to them. At bottom, defendant invites us to equate S.M.’s mere description of the acts engaged in with defendant and his use of slang words to refer to his penis to the much greater evidence of the victim’s understanding of the act of intercourse and ability to knowingly consent thereto in Blunt. We decline to do so.

Defendant lastly contends that the State improperly told the jury in closing argument that defendant’s knowledge of S.M.’s inability to understand the nature of the acts engaged in or to knowingly consent to them was not an issue in the case.

Preliminarily, we agree with the State that defendant waived any error in this argument by failing to object at trial. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Even if we consider the merits of this issue, however, we reject defendant’s contention. We agree with the State that, read in the context in which it was made, i.e., a broader discussion of the elements of criminal sexual assault, the complained-of statement was merely an expression of the prosecutor’s belief either that there was no dispute as to the defendant’s knowledge or that the State’s evidence thereon was so overwhelming as to have rendered it a nonissue in the case. As such, we believe the prosecutor’s remark was proper. A prosecutor may state an opinion based on the record or on a legitimate inference therefrom. People v. Johnson (1987), 119 Ill. 2d 119, 518 N.E.2d 100, cert. denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 629, 108 S. Ct. 2027.

Moreover, whichever interpretation the statement was meant to convey, it cannot be reasonably construed as stating that the jury need not even consider the issue of defendant’s knowledge. In this regard, the trial court specifically instructed the jury that, to sustain the charge of criminal sexual assault, the State was required to prove, in addition to an act of sexual penetration, that defendant knew the victim was unable to understand the nature of the act or to give knowing consent. It further instructed the jury that, if it found from the evidence that each of the elements had been proved beyond a reasonable doubt, it should find the defendant guilty and vice versa. Where the trial court properly instructs the jury on the law, prosecutorial argument which misstates the law does not constitute error. People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746; People v. Goodum (1984), 127 Ill. App. 3d 350, 468 N.E.2d 1237.

For all of the foregoing reasons, we affirm defendant’s convictions for criminal sexual assault.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.

APPENDIX

      We discuss the independent origin of S.M.’s and Wilcox’ in-court identifications of defendant in greater detail below.

      Having found that the trial court should have suppressed S.M.’s and Wilcox’ lineup identifications of defendant, we need not address defendant’s remaining arguments against the validity of S.M.’s lineup identification of him.

      Having found that the trial court should have suppressed S.M.’s and Wilcox’ lineup identifications of defendant, we limit the present discussion, as it relates to Wilcox, to her in-court identification of him.