author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL KABALA, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 90—2163
    Opinion filed February 7, 1992.

      Harry A. Schroeder, of Flossmoor, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Daniel Rabinovitz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant, Michael Kabala, was charged with possession of child pornography in violation of section 11—20.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 11—20.1). After a jury trial, defendant was convicted and sentenced to 30 months’ probation and fined $1,000. Defendant appealed. We consider whether the State established a sufficient foundation to support the trial court’s admission of an eight-millimeter film into evidence.

We reverse and remand for a new trial.

Relevant to our disposition are the following facts as disclosed by the record. On June 16, 1987, special agents of the United States Customs Service office (Customs) executed a search warrant at a house located at 15450 South Lawndale, Markham, Illinois. Defendant resided at the house, but he did not own the house. The special agents recovered a loose piece of eight-millimeter film and five groups of photographs. Both the film and the photographs depicted material commonly characterized as child pornography.

Criminal proceedings were initiated against defendant both in the State and Federal courts. The charges in the Federal court involved only the photographs which defendant had received through interstate commerce; defendant pleaded guilty and was sentenced by the Federal court. Subsequently in the State court, defendant was charged with 11 counts involving the photographs and charged with two counts involving the eight-millimeter film. Defendant moved to dismiss each of the State’s counts based on the principles of double jeopardy. The trial court granted defendant’s motion. The State appealed only the dismissal of the two counts involving the eight-millimeter film. The appellate court entered an order (People v. Kabala (1st Dist. 1989), No. 1 — 88—2572 (unpublished order under Supreme Court Rule 23)) reversing the dismissal of the two counts and the cause was remanded to the trial court for further proceedings.

Prior to the ensuing trial, defendant moved to exclude the photographs which were the basis of the Federal proceedings. The trial court granted the motion on two conditions: (1) the court would admit the photographs if defendant’s knowledge as an element of his offense became an issue; and (2) the court would admit the photographs if defendant or defendant’s counsel implied that the eight-millimeter film was the only item seized from defendant’s residence.

Defendant also moved to exclude the title of the eight-millimeter film, “Pre-Teen Virgin,” on the ground that it was inadmissible hearsay, and moved to exclude certain portions of the film which did not depict children in a sexually graphic manner. The court denied the motions to exclude the title of the film or any portion of the film.

At trial, the State called two witnesses, Tom Fischer and Jack O’Malley, both United States Customs agents. Fischer testified that he, several other agents, and various local police officers executed the search warrant at defendant’s residence at 7:30 a.m. on June 16, 1987. During the search, Fischer saw one of the agents ascend from the downstairs area holding a piece of eight-millimeter film. Fischer was in the kitchen at the time talking with the evidence custodian for the search, Dennis Schlaka. Fischer testified that the film was a loose piece of eight-millimeter film between 20 to 30 feet in length; it was not wound on a reel. After Fischer suggested that the film be included in the evidence, he watched as Schlaka put the film into a large, white envelope. Schlaka initialed and dated the envelope. In court, Fischer identified the film and the envelope; both were introduced as State’s exhibits. On cross-examination, Fischer testified that he did not view the film and he therefore did not know its contents.

Jack O’Malley testified that he was an agent supervisor at the time the search warrant was executed. The day prior to the search, O’Malley applied for the search warrant before a Federal magistrate. However, he was not present during the search of defendant’s residence. At noon the day of the search, O’Malley was at the Customs office in Chicago. Another agent assigned to the case brought him the envelope with the film. O’Malley testified that he believed the film was between 10 to 25 feet long. O’Malley had the envelope and film put in the evidence room which was locked; only those authorized persons with the combination could access the evidence room. A year and one day later, O’Malley retrieved the envelope and film from the evidence room and took it to the United States Attorneys’ office in Chicago. O’Malley viewed the film with the United States Attorneys assigned to the case in the Federal court.

Before O’Malley testified to the contents of the film, defendant objected on the ground that the State failed to establish a sufficient chain of custody for the film. After hearing arguments outside the presence of the jury, the trial court overruled the objection.

O’Malley then stated that the film was approximately two minutes in length. Portions of the film contained sexually graphic material involving a young girl in violation of several of the subparagraphs of paragraph (a)(1) of the Illinois child pornography statute. (Ill. Rev. Stat. 1987, ch. 38, par. 11—20.1(a)(1).) On cross-examination, O’Malley testified that he did not view the film when it was brought to him on the day of the search. He admitted that there were no identification markings on the film itself. He did not learn of the title of the film until he viewed it.

At this point, the trial court admitted the film into evidence. Defendant renewed his objection to the film’s admission. The court indicated that it would research the issue and if it then determined the film was not admissible, a directed verdict would be entered in favor of the defendant. The film was published to the jury in the form of a VHS copy. It was stipulated that the contents of the VHS copy were identical to the eight-millimeter film. The State rested.

Defendant did not present any witnesses in his defense. However, the attorneys again argued the issue of the admissibility of the film. The trial court affirmed the admissibility thereby precluding a directed verdict in favor of defendant. The case was submitted to the jury, which found defendant guilty.

Defendant filed post-trial motions for judgment of acquittal and for a new trial. These motions renewed defendant’s objection that the State failed to establish a chain of custody for the film. The court denied both post-trial motions.

Defendant was sentenced to 30 months’ probation with the first year to be served in the intensive probation department. Defendant was also fined $1,000. Defendant filed this appeal.

Opinion

Defendant raises several issues on appeal. We address only one: whether the State established a sufficient foundation for the trial court’s admission of the eight-millimeter film into evidence. The eight-millimeter film was the only evidence supporting the State’s charges. In the event the film was inadmissible, the defendant’s conviction must be reversed.

A proper foundation for the introduction of physical evidence may be laid either through witness identification or through the establishment of a chain of custody. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) Although both foundations are not required for any one item of evidence, the character of the evidence may determine which is required. (People v. Winters (1981), 97 Ill. App. 3d 288, 422 N.E.2d 972.) If the evidence is not readily identifiable or is susceptible to alteration by tampering, substitution, or contamination, the party must establish a chain of custody; in this event, the chain of custody must be of sufficient completeness to render it improbable that the evidence has been tampered with or substituted. Winters, 97 Ill. App. 3d 288, 422 N.E.2d 972.

Here, the evidence was a loose piece of standard eight-millimeter film. The film itself had no identification and there was no evidence of a film reel containing a label. Although the title and contents of the film may have provided a basis to identify the film, Fischer testified that he never viewed the film and O’Malley testified that he did not view the film until a year and a day after it was seized. Therefore, the film was not readily identifiable, and we determine that the State was required to establish a chain of custody in order to lay a proper foundation for the introduction of the film into evidence.

Our analysis of the State’s chain of custody indicates that it was incomplete in several significant respects. We limit our discussion to the facts concerning the initial recovery of the film and the transfer of the film from defendant’s residence to the Customs office.

Although Fischer testified that he was present during the search, he did not testify to facts concerning the actual recovery of the film in the house. There was no testimony as to the film’s precise location or condition in the house when it was recovered. Fischer merely testified that he watched another agent ascend from the basement area holding the film. However, neither Fischer nor anyone else involved in the State’s case could recall the name of this agent; the identity of this person remains a mystery. We are aware that the establishment of a chain of custody does not require that every person involved in the chain testify. (.People v. Jones (1986), 148 Ill. App. 3d 345, 499 N.E.2d 510.) However, we note that the absence of this agent’s testimony raises doubt over facts connecting the film with defendant at the crucial moment when it was recovered from the house. We also note that the State was unable to explain the absence of the agent’s testimony. See People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553 (State explained that the absence of testimony from two officers who actually recovered the evidence was due to the officers’ annual furlough).

Fischer testified that he saw the evidence custodian for the search, Dennis Schlaka, place the film in an envelope and then date and initial the envelope. However, the film itself was not tagged or marked in any way and the envelope was not sealed. (See Winters, 97 Ill. App. 3d 288, 422 N.E.2d 972 (citing to a list of cases in which proper sealing was an important factor in the establishment of chain of custody).) Fischer stated he believed the film was between 20 to 30 feet long.

Next, the film was transferred to the Customs office in Chicago. O’Malley testified that he received the envelope and film from another agent at 12 p.m. However, the record does not reflect the identity of this agent or how this agent gained possession of the film from Schlaka. Therefore, there is another missing link in the chain of custody. We are aware that if a link in the chain is missing, but there is testimony describing the condition of the evidence when delivered which matches the description of the evidence when received, the testimony is sufficient to establish a chain of custody. (People v. Irpino (1984), 122 Ill. App. 3d 767, 461 N.E.2d 999.) Here, however, O’Malley’s description of the film as between 10 to 25 feet long does not match Fischer’s description of the film as between 20 to 30 feet long.

It is true that the propriety of admitting physical evidence rests primarily within the discretion of the trial judge, and the exercise of that discretion will not be disturbed absent an abuse which prejudices the defendant. (People v. Schubert (1984), 136 Ill. App. 3d 348, 483 N.E.2d 600.) However, it is also true that courts have generally applied stricter evidentiary standards in criminal cases. (M. Graham, Cleary & Graham’s, Handbook of Illinois Evidence §901.2, at 629 (4th ed. 1984).) In light of the above, we cannot determine that the State established a chain of custody of sufficient completeness to render it improbable that the film had been substituted or tampered with. Therefore, we hold that the trial court abused its discretion admitting the film into evidence.

Reversed and remanded for a new trial.

MURRAY and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PROLERIZED CHICAGO CORPORATION et al., Defendants-Appellees.
    First District (6th Division)
    Nos. 1 — 90—1110, 1—90—1111 cons.
    Opinion filed February 7, 1992.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, and Joseph Brent, Assistant State’s Attorneys, of counsel), for the People.
    Pope & John, Ltd., of Chicago (Richard A. Devine, James D. Wilson, Fernando R. Carranza, and David F. Wentzel, of counsel), for appellee Prolerized Chicago Corporation.
    Robert A. Loeb, of Chicago, for appellee Lawrence Kaplan.
    John G. Quirk, of Palos Hills, for appellee Sheldon Cherney.
   JUSTICE LaPORTA

delivered the opinion of the court:

A grand jury returned indictments against defendants for failure to maintain proper records by a scrap processor licensed under the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 5—404). Prior to trial, defendants filed motions to quash their arrests and to suppress evidence, seeking to exclude the physical evidence seized by law enforcement officials from the premises of defendant Chicago Prolerized Corporation (Prolerized). The trial court granted defendants’ motions to suppress evidence and to quash their arrests, finding that the law enforcement officials should have obtained a search warrant. The court held that due to the officers’ failure to obtain a warrant, the evidence at issue had been discovered during an illegal search and seizure. The trial court suppressed the physical evidence against defendants and dismissed the charges against them.

The State has appealed, asserting that the trial court erred in granting the defendants’ motion and in dismissing the charges against them. On appeal, the State contends that the search of defendants’ premises was a proper administrative inspection under the Code and that the evidence against defendants was properly seized.

The record indicates that on March 30, 1988, several Chicago police officers, along with inspectors employed by the Illinois Secretary of State, entered the premises of Prolerized, a scrap processor, and conducted an inspection of the corporation’s books and records. Subsequently, defendants were indicted for failure to maintain proper records under section 5—404 of the Code. (Ill. Rev. Stat. 1987, ch. 951/2, par. 5 — 404.) Prior to trial, defendants filed motions to quash their arrests and to suppress the physical evidence against them, claiming that the search of the premises and records of Prolerized was illegal as was the seizure of evidence discovered during the search.

Defendants’ motions asserted that (1) at the time of the search, they were not violating any Federal, State or local law and there existed no probable cause to make the arrest, search and seizure, (2) the search and seizure were made without a warrant or any authority, and (3) the law enforcement officials used the authority granted them to make administrative inspections of scrap yards as a pretext or ruse to search for evidence of criminal activity in contravention of the principles established by the Illinois Supreme Court in People v. Madison (1988), 121 Ill. 2d 195, 520 N.E.2d 374, and followed by the appellate court in People v. Winemiller (1989), 179 Ill. App. 3d 1063, 535 N.E.2d 94.

At the hearing on defendants’ motion to quash their arrests and to suppress evidence, the trial court heard testimony from several of the law enforcement officers who participated in the inspection of the books and records kept by Prolerized.

Chicago police officer Dennis Hays testified that on March 30, 1988, he was assigned to the auto theft unit and his duties included conducting inspections of scrap processors licensed under the Code.

On March 30, 1988, Hays went to Prolerized along with Chicago police officers Sesso, Welch, and McNally and with Sergeant Dowdle and Investigator Grandberry, who were employed as investigators for the Blinois Secretary of State. Hays stated that when he and the other law enforcement officials entered the premises of Prolerized on March 30, 1988, they did not have a search warrant. Hays stated further that his purpose in going to Prolerized was to conduct an inspection of the records which Prolerized was required to keep pursuant to section 5—403 of the Code. (Ill. Rev. Stat. 1987, ch. 951/2, par. 5—403.) Hays testified that his lieutenant instructed him to inspect the records kept by Prolerized but did not tell him to conduct a criminal investigation of the corporation. Hays also stated that he was unaware of any criminal investigation of Prolerized.

Hays testified that defendant Chemey was in the corporation’s office when he and the other officers arrived on the premises of Prolerized and that Chemey indicated that he was the manager of Prolerized. Hays informed Cherney that the officers were there to conduct an official inspection of the records kept by the corporation. Hays then inspected the operator’s license issued to Prolerized and observed that defendant Kaplan was listed on the license.

During the inspection, Hays requested that Chemey produce the Blinois automobile titles, junking certificates, junking manifests, and uniform invoices in addition to records indicating vehicle identification numbers, color descriptions, and the names of the sellers of the vehicles, and whether the vehicles were purchased from dealers or from individuals. The only documents produced by Chemey consisted of uniform invoices, weight tickets, and file cards bearing the names of the track drivers who had delivered vehicles to Prolerized.

Hays explained that uniform invoices were used by automobile parts recyclers to document the vehicles shipped to a scrap processor. Weight tickets are generated by a machine that weighs vehicles brought to Prolerized, and then the drivers who deliver the vehicles to the corporation are paid according to the weight of the vehicles. The weight ticket is actually a copy of the check issued as payment to the driver who has delivered the vehicle. The file cards kept by Prolerized listed the names and addresses of various track drivers, each of whom had been assigned an identification number by Prolerized.

Hays testified that he requested additional records from Chemey, including uniform invoices prepared by Prolerized and records which documented the vehicles purchased by Prolerized and still on its property. Chemey responded that Prolerized did not always take a uniform invoice, depending upon whether the track driver offered one or even had one in his possession. Chemey was unable to produce any of the additional records requested by Hays.

Hays examined the records that were produced by Chemey while Sesso, Grandberry, and Welch inspected vehicles that were on the premises. These officers wrote down the vehicle identification numbers of the cars on the corporation’s property and interrogated people who were in the yard. When the officers concluded their inspection of Prolerized, defendant Chemey was arrested.

Officer Sesso testified that he was assigned to the auto theft unit and had worked in the area around Prolerized from January through March of 1988. During this three-month period, Sesso stopped tow truck drivers and car haulers who operated in that vicinity.

Sesso testified further that during this three-month period, he arrested certain truck drivers, including George Vaughn, arrested on January 14 and 22, 1988, Wilbert Brownlee, arrested on March 7, 1988, and James Williams, arrested on March 29, 1988. Sesso stated that he recovered and inventoried automobile titles held by these truck drivers after the vehicles had been sold. Sesso denied that these drivers told him that Prolerized refused to accept the titles to vehicles. Sesso was, however, impeached on cross-examination through the use of a police report identified as a “State’s Attorney’s 101 Information Form” which was prepared and presented for the indictment of Prolerized. The report reflected that the truck drivers told Sesso that Prolerized routinely refused to accept titles to automobiles delivered by the drivers.

The defense then recalled Officer Hays, who testified that he prepared the “State’s Attorney’s 101 Information Form” several months after the arrest of defendant Cherney following the administrative inspection conducted on March 30, 1988. Hays stated that the report was prepared for presentation to the grand jury, but he could not recall specifically what information had been obtained from particular sources.

After Hays testified, the defense rested, and the State moved for a directed finding. Upon hearing arguments of counsel, the trial court denied the State’s motion for a directed finding.

Thereafter, the State called Chicago police officer Welch, who testified that he was assigned to the auto theft unit and had been instructed by his lieutenant to conduct an inspection of the premises of Prolerized. Welch indicated that he had supervised the inspection of Prolerized, and that after he and the other officials arrived, he went outside to conduct a physical investigation of the vehicles and the parts located in the yard in order to check their identification numbers. Welch stated further that following the inspection, Cherney was arrested for failure to keep records as required by section 5—403 of the Code. Welch indicated that the officers decided to arrest Cherney because vehicles had been brought in with no titles and no proof of ownership.

The State then called Patrick Dowdle, who testified that he was employed by the Inspector General’s office of the Secretary of State. Dowdle stated that he assisted the Chicago police officers in the inspection of Prolerized along with Inspector Grandberry and Inspector Sanchez from the Secretary of State’s office.

Dowdle testified that he questioned an employee of Prolerized about the manner in which the corporation kept records of the vehicles that were delivered there. This employee responded that the number on the boom of the tow truck was matched with one of the file cards kept by Prolerized to identify the company that brought the vehicle in. A weight ticket was then generated based upon the weight of the vehicle delivered. Dowdle stated further that defendant Cherney admitted that Prolerized did not take titles to vehicles, but only used the weight tickets to record vehicles delivered. Dowdle stated that while he was present on the premises of Prolerized, he observed several tow trucks arrive without leaving any titles or other identification for the vehicles they had sold to Prolerized.

Officer Hays was then recalled and testified that during the inspection of Prolerized he and Dowdle were inside the corporation’s office inspecting the records while Sesso and Grandberry were outside inspecting the vehicles on the premises. Hays stated that when he asked Cherney for the records of purchased vehicles kept by Prolerized, Cherney responded that he did not have any and that employees of Prolerized did not request any documentary proof of ownership for the vehicles purchased by the corporation.

Hays testified further that during the course of the inspection, Sesso spoke with three tow truck drivers, Shelton, Kurrek, and Brightwell, who told him that they had sold vehicles to Prolerized but did not deliver to Prolerized any ownership documents for those vehicles. Hays stated that Shelton, one of the tow truck drivers, was arrested at that time.

Upon consideration of the evidence presented and the arguments of counsel, the trial court granted defendants’ motions to quash their arrests and to suppress the evidence against them, finding that the police department had initiated a criminal investigation of the business practices of Prolerized prior to the inspection on March 30, 1988. The court held that the officers should have obtained a search warrant prior to inspecting the records and premises of Prolerized. The State has appealed the trial court’s ruling.

The Illinois Vehicle Code requires that scrap processors keep and maintain certain records, including a certificate of title, a salvage certificate, a junking certificate, a Secretary of State junking manifest, a uniform invoice, a certificate of purchase, or other similar documentary proof of ownership for each vehicle they accept. (Ill. Rev. Stat. 1987, ch. 951/2, par. 5—401.2(f).) The Code also provides that the failure to keep the records specified above constitutes a Class 2 felony. Ill. Rev. Stat. 1987, ch. 951/2, par. 5—404(a).

Section 5—403 of the Code authorizes representatives of the Secretary of State and other peace officers to conduct inspections of the books and records of scrap processors for the purpose of reviewing the required records to assess the accuracy and completeness of those records. Ill. Rev. Stat. 1987, ch. 951/2, par. 5—403(1).

Section 5—403(6) of the Code provides as follows:

“In the event information comes to the attention of the individuals conducting an inspection that may give rise to the necessity of obtaining a search warrant, and in the event steps are initiated for the procurement of a search warrant, the individuals conducting such inspection may take all necessary steps to secure the premises under inspection until the warrant application is acted upon by a judicial officer.” Ill. Rev. Stat. 1987, ch. 951/2, par. 5-403(6).

On appeal, the State asserts that the trial court erred in dismissing the charges against defendants because the inspection of the books and records kept by Prolerized was an appropriate “administrative inspection” and was authorized by section 5—403(1) of the Code. The State urges that a search warrant was not required as long as (1) the purpose of the “administrative inspection” was to assess the accuracy and completeness of the required records, (2) the evidence obtained during the inspection related to the failure to maintain proper records, and (3) the defendants were indicted for the failure to maintain proper records. We note, however, that the State has provided no Illinois authority which supports its assertion. None of the cases relied upon by the State involved an inspection conducted pursuant to the statutory sections at issue here. In addition, the State’s position ignores the language of section 5—403(6) of the Code and is contrary to the current Illinois case law.

The language of section 5—403(6) clearly contemplates that a search warrant be obtained if evidence of a violation of the Code is discovered by the officials who are conducting the inspection, and this section makes specific provisions for securing the premises under inspection in the event a warrant must be obtained. Reading this provision together with section 5—403(1), it becomes evident that the legislature intended to authorize warrantless inspections of records only during routine “administrative inspections” conducted in order to assess the accuracy and completeness of the required records.

This construction of the Illinois Vehicle Code was approved in People v. Madison (1988), 121 Ill. 2d 195, 520 N.E.2d 374, cert. denied (1988), 488 U.S. 907, 102 L. Ed. 2d 246, 109 S. Ct. 257, where the Illinois Supreme Court held that nothing in the Code permitted officials to execute a warrantless seizure of records or other evidence discovered during an inspection. (Madison, 121 Ill. 2d at 201, 520 N.E.2d at 377.) The court held further that warrantless inspections were authorized only for the limited purpose of checking the accuracy and completeness of the records kept by scrap processors. (Madison, 121 Ill. 2d at 200, 520 N.E.2d at 377.) The supreme court concluded that the gathering of evidence for criminal prosecutions was outside the narrow scope of authority given the State to conduct administrative inspections and that any information uncovered that could serve as the basis for a criminal prosecution required that a warrant be obtained. Madison, 121 Ill. 2d at 201, 520 N.E.2d at 377. See also People v. Winemiller (1989), 179 Ill. App. 3d 1063, 1065, 535 N.E.2d 94, 96.

The Illinois Supreme Court also found in Madison that section 5—403(6) was intended to provide safeguards designed to limit the discretion of State officials by restricting the manner in which warrant-less inspections could be conducted. (Madison, 121 Ill. 2d at 204, 520 N.E.2d at 379.) The court held that this section of the statute was enacted to protect against the possible abuses of administrative searches by requiring that the neutral judgment of a magistrate or judge be obtained before allowing State officials to seize evidence of criminal activity discovered during inspections. (Madison, 121 Ill. 2d at 205, 520 N.E.2d at 379.) The supreme court noted that because section 5— 403(6) imposed additional restrictions on the manner in which warrantless searches may be conducted, the language of the statute could not be read or interpreted in such a way as to render those restrictions meaningless. Madison, 121 Ill. 2d at 203, 520 N.E.2d at 378.

We find that the reasoning employed by the supreme court in Madison governs the instant case, and the conclusion reached by that court is controlling here.

The State seeks to avoid the result reached in Madison by attempting to distinguish that case from the case at bar. The State notes that Madison was not decided under traditional fourth amendment principles. The State further points out that the inspection in Madison was initiated in response to a neighbor’s complaint concerning the condition of the defendant’s premises. The State focuses upon the language in Madison where the court held that administrative inspections may not be used as a pretext to search for evidence of criminal violations and that if the primary object of the search is to gather evidence of criminal activity a search warrant based upon probable cause must be obtained. Madison, 121 Ill. 2d at 209-10, 520 N.E.2d at 381. See also Winemiller, 179 Ill. App. 3d at 1066, 535 N.E.2d at 96.

The State urges that because the administrative inspection in the case at bar was not in response to a neighbor’s complaint about the defendants’ premises and because the primary object of the search was not to gather evidence of criminal activity, the Madison decision should not govern the instant case. This claim is without merit.

A careful reading of the decision in Madison reveals that the supreme court fully considered the same arguments made by the State here and rejected those arguments for the reasons set forth above. Only after going through a complete analysis of these claims and concluding that the statute required a warrant before evidence discovered during an inspection could be seized did the court add that administrative inspections could not be used as a pretext to search for evidence of criminal violations. Thus, this rule was included at the end of the opinion after the court had already determined that the relevant statutory sections precluded officials from obtaining or seizing without a warrant evidence of criminal violations which have been uncovered during an administrative inspection. The distinction sought to be drawn by the State is unfounded, and we hold that the reasoning and rule established in Madison must be applied in the case at bar.

The evidence in the record established that the law enforcement officials who participated in the administrative inspection knew or suspected that Prolerized was in the practice of purchasing vehicles without accepting titles or other ownership documents for the vehicles. This evidence indicates that the purpose of the inspection of Prolerized was not merely to review the corporation’s business records. The trial court specifically found that a criminal investigation of Prolerized had begun prior to the inspection on March 30, 1988. Based upon this record, the trial court could properly conclude that the administrative inspection was merely a subterfuge allowing the police to enter the defendants’ premises with the expectation that they would find evidence of illegal activities. (See Madison, 121 Ill. 2d at 209-10, 520 N.E.2d at 381; Winemiller, 179 Ill. App. 3d at 1066, 535 N.E.2d at 96.) Consequently, we hold that no error occurred where the trial court granted the defendants’ motions to quash their arrests and to suppress the evidence against them.

The State contends that because the actions of the law enforcement officers were “objectively reasonable,” any evidence obtained during that inspection should have been held to be properly admissible against defendants under the fourth amendment.

In support of this position, the State relies upon a multitude of cases construing the fourth amendment, including Colonnade Catering Corp. v. United States (1969), 410 F.2d 197, rev’d on other grounds (1970), 397 U.S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774. In Colonnade, agents of the Internal Revenue Service believed that the defendant had unlawfully refilled and resealed liquor bottles in violation of the Federal tax code (26 U.S.C. §5301(c) (1988)). Acting on this belief, the agents entered the premises of the defendant and seized 2 funnels and 53 bottles containing alcoholic spirits. The defendant challenged the seizure of its property, and the court held that a prior suspicion of statutory violations did not make the subsequent warrantless inspection unreasonable. The court’s decision was premised upon the Federal statute (26 U.S.C. §7606(a) (1988)) authorizing tax inspectors to enter the premises of a dealer in liquor in order to examine the alcoholic beverages held by that dealer. This statute, however, did not contain any language which would require that a warrant be obtained before evidence of a crime could be seized. Thus, the statutory scheme governing the actions of the Federal agents in Colonnade was fundamentally different from the Illinois Vehicle Code in that it did not include any provision which could be considered analogous to section 5-403(6).

Similarly, the United States Supreme Court held in Michigan v. Clifford (1984), 464 U.S. 287, 294, 78 L. Ed. 2d 477, 484, 104 S. Ct. 641, 647, that if evidence of criminal activity is discovered during the course of a valid administrative search, it may be seized under the “plain view” doctrine. In Clifford, the Supreme Court found that the fourth amendment did not preclude arson investigators from conducting a warrantless nonconsensual search of the respondents’ private residence which had been damaged in a fire. The Supreme Court reaffirmed its holding that administrative searches generally require warrants, but found that because the determination of the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases. The court went on to note that evidence of criminal activity seized during an administrative search may be used to establish probable cause to obtain a criminal search warrant, but fire officials may not rely on this evidence to expand the scope of their administrative search. The court noted further that circumstances that justify a warrantless search for the cause of a fire may not justify a search to gather evidence of criminal activity once that cause has been determined.

We find that the decisions in Colonnade and Clifford are factually distinguishable from the case at bar and, consequently, are not controlling here. Accordingly, we hold that the order of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE McNAMARA

text:
    CONTINENTAL MOBILE TELEPHONE COMPANY, INC., Plaintiff-Appellant, v. CHICAGO S M S A LIMITED PARTNERSHIP et al., DefendantsAppellees.
    First District (6th Division)
    No. 1 — 91—0436
    Opinion filed February 7, 1992.
    — Rehearing denied March 3,1992.

      Nathan H. Dardick, Morton Denlow, and Michael D. Richman, all of Chicago, for appellant.
    Paul P. Biebel, Jr., Jerome W. Pope, Thomas R. Bearrows, and Michael J. Stepek, all of Winston & Strawn, of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Continental Mobile Telephone Company, filed a six-count complaint in the circuit court of Cook County seeking a declaratory judgment, injunctive and other relief against defendants, Chicago S M S A Limited Partnership, and its general partner, Ameritech Mobile Phone Service of Chicago, Inc. (hereinafter defendant). The parties had entered into an agreement in which plaintiff purchased cellular telephone services from defendant at wholesale prices and offered those same services to retail customers. The trial court granted partial summary judgment in defendant’s favor on count I, finding that defendant was not contractually bound to provide plaintiff with (1) a standard wholesale rate for defendant’s corresponding retail rates or plans; (2) fixed standard wholesale rates; and (3) 30 days’ advance notice of retail rate revisions. The remaining counts, alleging breach of implied duty of good faith and fair dealing, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq.), tortious interference with contract and prospective business advantage, unfair competition, and a request for declaratory judgment on the pricing discount were dismissed by the trial court for failure to state a cause of action. Plaintiff appeals from the award of partial summary judgment as to count I and the dismissal of the other counts, except the count alleging unfair competition.

We adduce the following factual background from the affidavits, pleadings, and documents filed. Defendant operates a cellular telephone transmission system in the Chicago area, selling mobile telephone service to both retail and wholesale customers. In 1981, the Federal Communications Commission awarded two competing licenses to provide cellular radio service to defendant and another cellular company. In effect, a legal duopoly was created that required the two entities to provide cellular transmission capacity to resellers on a nondiscriminatory basis, and under the same terms and conditions as its own retail distribution arm.

In 1984, plaintiff commenced operations as an independent reseller of cellular telephone service to its own retail customers in the Chicago metropolitan area. At the time plaintiff began to compete as a reseller, the rates charged by defendant were regulated by tariffs approved by the Illinois Commerce Commission (ICC). The tariffs provided resellers with a discount of 23.5% from the retail rate. In February 1987, the ICC granted defendant’s petition to exclude cellular radio service from the applicable tariffs and from active regulatory oversight. Defendant continued to provide wholesalers with a discount of 23.5% below the retail rate.

In the spring and summer of 1989, defendant began offering programs to individuals who were members of common interest groups such as realtors, printers, and small business association members at a 20% discount from defendant’s standard retail rate. Plaintiff informed defendant that its ability to compete was materially damaged as a result of the implementation of these programs. Consequently, the parties decided to enter into a formalized agreement in an attempt to resolve the dispute.

The parties engaged in contract negotiations from August through October 1989. The principal parties involved in the negotiations on behalf of plaintiff were its president, Ronald Goldberg, and its vice-president, Philip Leavitt. Martin Johanson, director of wholesale and corporate accounts, negotiated on behalf of defendant.

Goldberg stated in his affidavit that he voiced his concern at the contract negotiations about plaintiff’s ability to compete on a fair and equitable basis for retail customers. Plaintiff could not fairly compete with defendant for consumers being offered association plans, since no standard wholesale margin was being provided to it for such plans. During the negotiations, Johanson repeatedly assured Goldberg that defendant had ceased offering association plans to additional retail customers. At a meeting held on December 1, 1989, defendant’s president, Bruce DeMaeyer, stated that: “As long as I am president of [defendant corporation] there will be no more association deals.” Plaintiff also advised defendant that it was essential that standard wholesale rates be provided for every retail rate and plan offered by defendant.

On October 16, 1989, plaintiff and defendant executed a customer sales agreement drafted by defendant. Paragraph 14 of the agreement provides in relevant part:

“14. Rates and Charges. The Customer agrees to pay the Company for Service used by the Customer and/or any Authorized User at the rates and charges specified in the Company’s Schedule of Rates and Charges then in effect. (The Schedule of Rates and Charges in effect at the date of this Agreement is attached as Exhibit A). The Company, at its sole discretion and at any time, reserves the right to revise its rates and charges. The Company shall provide thirty (30) days’ notice to the Customer of the effective date of any revision. After any such effective date, the Customer must pay the revised rates and charges unless and until the Customer terminates this Agreement in accordance with the provisions of Paragraph 9, above.” (Emphasis added.)

The agreement contained an integration clause which stated that the agreement expressed the entire agreement between the parties, and superseded all prior discussion and agreements. In the event of any conflict, the provisions found in the agreement will control.

A pricing schedule was also included in the agreement, which codified all existing rates and charges in effect as of October 16, 1989. The schedule offered two pricing options. Under option A, plaintiff was required to pay defendant at standard wholesale rates for several corresponding retail plans in effect at that time. Option B provided a committed-growth incentive pricing plan that permitted plaintiff to make a three-year growth commitment in order to earn discounts ranging from 23.5% to 30% below defendant’s average retail rates. Plaintiff elected to participate in option B pricing. Goldberg stated in his affidavit that the wholesale rate charged by defendant has traditionally been 23.5% lower than the retail rate for the same cellular air time that defendant charges directly to the general public through its authorized agents, retailers or corporate sales divisions.

On March 14, 1990, defendant gave plaintiff notice that effective April 24, 1990, it would be implementing price restructuring for both retail and wholesale plans in the Chicago/northwest Indiana market.

On May 24, 1990, defendant notified all Chicago resellers, including plaintiff, that effective immediately, defendant was revising its rates and charges to its retail customers. Those revisions included the introduction of a new retail rate called the “Business Plan,” which was available only to customers subscribing to 10 or more mobile telephone lines. Defendant did not offer resellers a new wholesale “Business Plan” rate. According to Goldberg, plaintiff also lost numerous Chicago Mercantile Exchange customers after defendant offered retail rates at a price less than plaintiff’s wholesale cost.

During the course of the agreement, plaintiff operated under the pricing provisions of option B. Plaintiff initially committed to a net line growth of 300 lines per quarter, and received a discount margin of 30%. On May 2, 1990, defendant notified plaintiff that because of decreases in its performance level, defendant had recomputed the monthly service rates for its reseller program. Plaintiff requested back-up information to support defendant’s recomputation. On May 25, 1990, defendant’s in-house counsel notified plaintiff that in order to meet its committed growth level and to earn the Level 3 discount of 30% during that period, plaintiff would have had to achieve 600 net line activations. Because plaintiff actually achieved a negative net activation of 211 lines, it qualified only for the standard reseller discount of 23.5%.

The trial court found that the language contained in paragraph 14 was plain and unambiguous, and allowed defendant the option to alter its rates and charges, including the discount rate. The trial court characterized the 23.5% discounts previously given to plaintiff as a “matter basically of coincidence,” and merely a historical fact before the contract. Accordingly, the court granted defendant’s motion for partial summary judgment on count I. The remainder of plaintiff’s counts were later dismissed for failure to state a cause of action.

On appeal, plaintiff first contends that the trial court erred in granting summary judgment on count I. Specifically, plaintiff claims that pursuant to paragraph 14 of the agreement, defendant should be required to provide plaintiff with a standard wholesale rate for each corresponding retail rate or plan offered by defendant, 30 days’ advance notice of retail rate revisions, and that plaintiff is entitled to a standard wholesale rate of no less than 23.5% off defendant’s corresponding retail rates and plans. (Defendant does not cross-appeal and does not object to the trial court’s finding that it breached the notice provisions when it failed to provide 30 days’ advance notice of the May 24,1990, wholesale rate revisions.)

The purpose of summary judgment is to determine whether there are any issues of genuine material fact. (Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 519 N.E.2d 708.) An order granting summary judgment is appropriate where the pleadings and depositions on file, together with the affidavits, if any, demonstrate there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) Construing a contract is a matter of law suitable for summary judgment. Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 523 N.E.2d 30.

It is well settled under Illinois law that a contract is considered ambiguous when its terms can reasonably be interpreted in more than one way. (J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 551 N.E.2d 340; In re Estate of Chaitlen (1989), 179 Ill. App. 3d 287, 534 N.E.2d 482; Lenzi v. Morkin (1983), 116 Ill. App. 3d 1014, 452 N.E.2d 667.) However, when the contract terms are clear and unambiguous, the intent of the parties must be discerned only from the language used in the contract itself. (Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 461 N.E.2d 1031.) Language in a contract is not rendered ambiguous simply because parties do not agree upon its meaning. (Reynolds v. Coleman (1988), 173 Ill. App. 3d 585, 527 N.E.2d 897.) When contract terms are clear and unambiguous, they must be given their ordinary and natural meaning. Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 422 N.E.2d 879.

Applying these principles to this case, we find that the trial court properly concluded that the language contained in paragraph 14 is clear and unambiguous and allows defendant to revise its wholesale rates and charges at its sole discretion. We are unpersuaded by plaintiff’s argument that any reference to rates and charges requires defendant to provide notice of its retail rate revisions, for the essence of this agreement concerns the rates and charges plaintiff must pay as a reseller of cellular services. Paragraph 14 makes explicit reference to the schedule of rates and charges attached as exhibit A to the contract, which are, of course, wholesale rates. Further, we find the contract devoid of any terminology that would require a defendant to provide a standard wholesale rate for corresponding retail rates such as the newly introduced “Business Plan,” or that plaintiff was entitled to a discount rate of no less than 23.5% off defendant’s corresponding retail rates and plan. Finally, the integration provision contained in the contract indicates that the parties intended this agreement to be their final expression, and superseded all prior discussions and agreements between the parties.

Moreover, we note that in order to accommodate plaintiff’s contentions contained in count I, it would require that we remake the contract to provide a better bargain than plaintiff had already made. It is well established that a court may not rewrite a contract to suit one of the parties, and that when the terms are clear and unambiguous, they must be enforced as written. (Michigan Avenue National Bank v. Evans, Inc. (1988), 176 Ill. App. 3d 1047, 531 N.E.2d 872; A.A. Conte, Inc. v. Campbell-Lowrie-Lautermilch Corp. (1985), 132 Ill. App. 3d 325, 477 N.E.2d 30.) In this case, defendant was clearly afforded the discretion to revise its wholesale rates at any time. We conclude, therefore, that partial summary judgment was properly granted on count I.

We move now to plaintiff’s assertion that the trial court improperly dismissed counts II through VI for failure to state a cause of action. Under section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), a party may move for dismissal of an action where the pleadings fail to state a cause of action. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. Michael Reese Hospital & Medical Center v. Chicago HMO, Ltd. (1990), 196 Ill. App. 3d 832, 554 N.E.2d 472.

Plaintiff first maintains that the trial court erred in dismissing count V of plaintiff's complaint based on the implied duty of good faith and fair dealing. In support of its claim, plaintiff essentially reiterates its earlier assertions that defendant’s refusal to offer it a standard wholesale rate when implementing the “Business Plan” and other retail rates breached its implied good-faith duties under the agreement.

In view of the fact that the contract terminology allowed defendant to raise its rates at its sole discretion and at any time, we do not believe that plaintiff has stated a cause of action under the implied duty of good faith and fair dealing. Good faith between contracting parties requires that a party vested with contractual discretion must exercise that discretion reasonably, not arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties. (First National Bank v. Sylvester (1990), 196 Ill. App. 3d 902, 554 N.E.2d 1063, citing Carrico v. Delp (1986), 141 Ill. App. 3d 684, 490 N.E.2d 972.) In this case, both parties were aware that defendant was able to raise its wholesale rates at any time, thereby negating any inference that defendant’s actions were outside the contemplation of the parties and could be characterized as a breach of good faith.

Plaintiff next contends that it properly stated a cause of action in count IV based upon the Consumer Fraud and Deceptive Business Practices Act (Act or Consumer Fraud Act) (Ill. Rev. Stat. 1989, ch. 12½, par. 261 et seq.). The trial court found the Act did not apply under the circumstances because plaintiff was alleging only an isolated breach of contract. In addition, the court found that under section 10b(l) of the Consumer Fraud Act, the ICC retained “passive jurisdiction” to regulate defendant’s conduct. That section provides in relevant part:

“§10b. Nothing in this Act shall apply to:
(1) Actions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States.” Ill. Rev. Stat. 1989, ch. I2I½, par. 270b(l).

We agree with the trial court’s conclusion that section 10b(l) precludes our review of this claim. The rates for cellular service, as part of the telecommunications sector, are subject to continuous monitoring by the ICC. Indeed, the record reveals that in March 1991, plaintiff filed a complaint with the ICC charging that the same conduct alleged in this case constituted unfair and anticompetitive practices in pricing.

Plaintiff also maintains that it properly pled a cause of action in count II for tortious interference with contracts and prospective advantage. The essential elements of both of these torts are similar in their requirements: (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) defendant’s awareness of this contractual relation; (3) defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by the defendant’s wrongful conduct; and (5) damages. (Scheduling Corporation of America v. Massello (1983), 119 Ill. App. 3d 355, 456 N.E.2d 298.) The acts that form the basis of tortious interference must be directed at parties other than the plaintiff. IK Corp v. One Financial Place Partnership (1990), 200 Ill. App. 3d 802, 558 N.E.2d 161; Mitchell v. Weiger (1980), 87 Ill. App. 3d 302, 409 N.E.2d 38.

It is undisputed that defendant failed to render notice of the May 24, 1990, wholesale rate revision. However, that conduct was not directed at any third party; rather, it was directed only at the plaintiff. As such, plaintiff has failed to meet the requisite elements of tortious interference. Moreover, plaintiff’s assertion that defendant’s solicitation of plaintiff’s retail customers under the “Business Plan” without giving plaintiff advance notice of that rate constitutes tortious interference fails in view of our previous discussion that defendant was not contractually obligated to render advance notice of retail rate revisions. In addition, we note that plaintiff was aware from the onset of this relationship that defendant sold mobile telephone service to both retail and wholesale customers.

Finally, plaintiff contends that the trial court erred in dismissing count VI, which sought a declaration that because of defendant’s failure to provide advance notice of the May 24, 1990, wholesale rate revision, it was unable to achieve the net line growth under option B which would have entitled it to a 30% discount, rather than the 23.5% standard wholesale rate.

In its first amended complaint, plaintiff claims that on May 2, 1990, prior to the date of the alleged breach by plaintiff, defendant advised that it had recomputed the monthly service rates upwards and billed plaintiff accordingly. Defendant’s failure to provide advance notice of the wholesale rate revision occurred on May 24, 1990; therefore, we find that any decrease in plaintiff’s discount rate under option B is not attributable to the dispute at hand and was properly dismissed by the court.

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

Judgment affirmed.

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


author: JUSTICE McCORMICK

text:
    ANN KIRK, Petitioner-Appellee, v. EDWARD J. ROSEWELL, County Treasurer, Respondent-Appellant.
    First District (2nd Division)
    No. 1 — 90—0599
    Opinion filed February 11, 1992.

      Jack O’Malley, State’s Attorney, of Chicago (Joan S. Cherry, Daniel E. Cannon, and Thomas M. Davy, Assistant State’s Attorneys, of counsel), for appellant.
    Burton A. Brown, P.C., of Chicago (Burton A. Brown, of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Respondent, County Treasurer Edward J. Rosewell, appeals from an order of the circuit court requiring him to pay petitioner, Ann Kirk, $50,000 from an indemnity fund created to compensate owners of real estate who lose their property through tax sales. Respondent contends that the trial court erred in finding that petitioner was entitled to be indemnified for the loss of her property.

In April 1988, petitioner filed a claim for indemnity against respondent seeking recovery under section 247a(5) of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 728a). Section 247a(5) provides:

“Any owner of real estate sold pursuant to any provision of this Act at a sale held subsequent to September 1, 1970, who without fault or negligence of his own sustains loss or damage by reason of the issuance of a tax deed pursuant to Sections 266 or 266a, and who is barred or in any way precluded from bringing an action for the recovery of such real estate or any owner of property containing four or less dwelling units who resided thereon the last day of the period of redemption who, in the opinion of the Court which issued the tax deed order, is equitably entitled to just compensation, has the right to indemnity for the loss or damage sustained. Indemnity shall be limited to the fair cash value of the real estate as of the date that the tax deed was issued, less any mortgages or liens thereon.”

At the hearing on her petition for compensation, petitioner testified that she was 56 years old, that she graduated from Truman College in 1979 and that prior to 1980 she worked at the college as a lab technician. Petitioner testified that the Eberhart property was originally owned by her grandparents, who lived in the first-floor apartment. In 1980, petitioner quit her job and moved in with her grandparents so that she could care for her grandfather, who was suffering from cancer. Petitioner testified that her grandparents’ only source of income was her grandfather’s pension and the rent from two apartments they owned. Petitioner also testified that her grandparents’ savings were depleted by the expenses of her grandfather’s illness.

After petitioner’s grandfather died in 1983, petitioner continued to live in the Eberhart property, looking after her grandmother, who was also ill. Petitioner herself had no income and she and her grandmother lived off the apartment rents and death benefits left by petitioner’s grandfather.

The record establishes that on January 25, 1985, the Eberhart property was sold for nonpayment of the 1983 real estate taxes. The record also establishes that on January 26, 1985, petitioner and her grandmother cosigned for a $17,500 loan to finance repairs to the property. The property was used as collateral, and the loan was to be repaid in monthly installments of $273.63. At the time of the hearing, petitioner was still making monthly payments on the loan.

In December 1985, petitioner’s grandmother executed a quitclaim deed, transferring title to the property to petitioner. In early 1986, petitioner began receiving monthly social security benefits because of a back injury suffered in 1981. Petitioner testified that in addition to the back injury, she also suffered from carpal tunnel syndrome, which made it difficult for her to use her hands.

In July 1986, petitioner’s grandmother died. After her grandmother’s death, petitioner's only income was her monthly social security payment. Petitioner testified that at the time of the hearing, she still owed $1,400 for her grandmother’s funeral expenses.

On April 2, 1985, petitioner obtained a cashier’s check in the amount of $452.42 to pay the 1983 real estate taxes on the property. Petitioner testified that when she took the check to the county clerk’s office, she was told that she owed an additional $40 on the 1983 taxes. According to petitioner, she returned to the clerk’s office two weeks later with the $40, and at that time was told that, because of penalties, she needed another $100. When she returned three weeks later with the additional $100, she was again told that she needed more money and advised to obtain an estimate of cost of redemption.

Although petitioner initially testified that it was a matter of weeks between her visits to the clerk’s office, she later stated that there could have been months between her visits. Petitioner also stated that she probably requested more than one estimate of cost of redemption for the 1983 taxes; however, only one estimate was produced at the hearing.

This estimate, which was undated, stated that the property had been sold for 1983 taxes and that the tax purchaser had also paid the first and second installments of the 1986 taxes for a total cost of redemption of $1,818.78. Petitioner testified that after getting the estimate, she attempted to borrow the money to pay the taxes from family members and friends but was unsuccessful. Petitioner stated that she did not attempt to get a bank loan using the property as collateral because of the earlier loan which was still outstanding.

On cross-examination, petitioner testified that her grandparents also owned property located at 7530 South Evans in Chicago and that she had previously redeemed back taxes on both this property and the property located on Eberhart. Petitioner admitted that because of her previous experiences, she was aware that she would lose the property if she did not redeem the taxes.

Following the hearing, the court found that, based on “all relevant factors and the totality of the circumstances,” petitioner was entitled to $50,000 in compensation for the loss of her property.

In this appeal, respondent argues that the trial court abused its discretion in ruling that petitioner was equitably entitled to compensation under section 247a(5). We disagree.

In 1980, section 247a(5) was amended to add the language concerning residential owners of property containing four or fewer dwelling units. This amendment allows a trial court to award compensation to a residential owner whose property is sold for nonpayment of taxes, without regard to the owner’s fault or negligence, if the court concludes that the owner is equitably entitled to compensation. In re Application of Cook County Collector (1988), 174 Ill. App. 3d 981, 529 N.E.2d 570 (Walker v. Rosewell); In re Application of Kane County Collector (1985), 135 Ill. App. 3d 796, 482 N.E.2d 161 (Tharp v. Critton).

A trial court has broad discretion in determining whether an owner is entitled to compensation and its conclusions should not be disturbed on review absent an abuse of that discretion. (Tharp v. Critton, 135 Ill. App. 3d at 805.) In Tharp, the appellate court described an abuse of discretion as judicial action that is arbitrary, fanciful or unreasonable. The court added that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Tharp, 135 Ill. App. 3d at 805-06.

In arguing that the trial court erred in determining that petitioner was equitably entitled to compensation, respondent relies on this court’s decision in Walker v. Rosewell. Walker, like petitioner in the present case, attempted to redeem her taxes and was informed that she needed more money. When Walker returned with the money, she was told that she needed still more. Two estimates of cost of redemption were issued to Walker and she was aware that she would lose her property if she did not pay the taxes. In addition, Walker, like petitioner, had previously redeemed property and, therefore, was familiar with redemption procedures. On appeal from a denial of compensation, this court found sufficient facts to support the trial court’s ruling that Walker was not equitably entitled to compensation. Walker, 174 Ill. App. 3d at 987.

However, unlike Walker, in the present case we are required to determine whether there are sufficient facts to support the trial court’s ruling that petitioner was entitled to compensation. Thus, despite the factual similarities between this case and Walker, we find that our earlier decision has little applicability to the case before us. This finding is supported by the fact that the courts of this State have held repeatedly that each indemnity fund case must be decided on its own facts. Van Dahm v. Novak (1988), 174 Ill. App. 3d 880, 529 N.E.2d 43; In re Application of County Collector (1978), 59 Ill. App. 3d 494, 375 N.E.2d 553 (Diller v. Korzen); Garcia v. Rosewell (1976), 43 Ill. App. 3d 512, 357 N.E.2d 559.

In the present case, before ruling in petitioner’s favor, the trial court stated that its decision was based on all relevant factors and circumstances. These factors and circumstances included petitioner’s testimony describing her attempts to redeem her property, as well as her testimony that she was unemployed, that she was disabled, and that her only source of income was her monthly social security payment. In addition, there was testimony from petitioner that she was still making monthly payments on a loan obtained to make repairs to the property and that she still had outstanding medical bills and funeral expenses incurred by her grandparents.

Although it could be argued that petitioner was at fault for failing to redeem the property, under section 247a, the question of whether petitioner is equitably entitled to indemnity is to be determined without regard to fault. Given petitioner’s testimony concerning her financial status, her health, and her unemployment, we cannot say that reasonable men would not differ as to the propriety of the trial court’s action; nor can we say that no reasonable man would take the view adopted by the trial court. Accordingly, we find that the trial court did not abuse its discretion in determining that petitioner was equitably entitled to compensation.

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

Affirmed.

SCARIANO and DiVITO, JJ., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT BOCLAIR, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 88—0238
    Opinion filed February 13, 1992.

      Edward J. Wong III, of State Appellate Defender’s Office, and Herbert Boclair, pro se, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Walter P. Hehner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Following a bench trial, defendant, Herbert Boclair, was convicted of aggravated criminal sexual assault, criminal sexual assault, and aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, pars. 12—14(a)(2), 12—13(a)(2), 12—16(d)), and was sentenced to a maximum prison term of 30 years. On appeal, he has submitted pro se briefs in addition to the briefs filed by the State Appellate Defender.

In the briefs filed by the State Appellate Defender, defendant contends that the trial court abused its sentencing discretion because it considered complainant’s mental retardation as an aggravating factor, it failed to consider defendant’s rehabilitative potential and other mitigating factors, and it restricted defendant’s right of allocution. He contends further that the convictions for criminal sexual assault and aggravated criminal sexual abuse must be vacated because they were based upon the same physical act as the conviction for aggravated criminal sexual assault. He requests that we reduce the sentence for aggravated criminal sexual assault or remand for resentencing by a different judge. The State agrees that the conviction for criminal sexual assault should be vacated.

In his pro se briefs, defendant asserts a litany of alleged violations of his constitutional rights and contends that he was not proved guilty beyond a reasonable doubt.

On the evening of August 22, 1986, defendant sexually assaulted his mentally retarded deaf-mute 13-year-old grandniece in the basement of his niece’s home in the 6700 block of South Damen Avenue in Chicago. There was evidence that complainant’s deafness impaired her ability to balance and rendered her incapable of walking downstairs to the basement without assistance.

Three eyewitnesses testified that they saw defendant in the basement with complainant, that his penis was exposed, erect, and wet, that her vaginal area was wet, and that defendant said that complainant’s mother would kill him and that he knew that what he had done was wrong. One of the eyewitnesses reached the basement a step or two ahead of the others and actually saw defendant lying on top of complainant. Defendant was standing up when the other two eyewitnesses saw him.

A physician, who examined complainant later that night, discovered a small vaginal tear but no vaginal trauma or laceration. Laboratory tests apparently proved negative for semen.

Defendant testified that he knew that complainant was deaf, mute, and mentally retarded. He denied that he engaged in sexual intercourse with her and claimed that he had been drinking and was in a “dream stage.” He testified that he thought that he had “messed with the kids in some way” and claimed that his niece told him that his brother had fondled complainant. He fled Chicago and was subsequently apprehended in St. Louis, Missouri. He admitted that when he was captured he did not tell the police that his niece said that his brother had fondled complainant.

During the sentencing hearing, the assistant State’s Attorney argued in aggravation that defendant had prior convictions in 1957 and 1958 and had served prison sentences for armed robbery, burglary, and robbery. The presentence investigation report (PSI) failed to disclose defendant’s criminal history because the relevant records apparently had not arrived in time from St. Louis, Missouri. The assistant State’s Attorney requested that the trial court sentence defendant to an extended term.

Defense counsel argued in mitigation that defendant was 55 years old and a widower with five children. (Defendant testified at trial that he had six children.) Defense counsel argued further that defendant had dropped out of school in the tenth grade to join the United States Air Force and that he was honorably discharged four years later. Defense counsel observed that defendant was a self-employed contractor, that he had abused alcohol for over 30 years, and that he was experiencing health problems attributable to his alcohol abuse.

The trial court asked defendant whether he had anything to say. Defendant responded that he felt that he was not properly represented. The trial court disagreed and stated that defendant was well represented. Defendant then stated that the case did not make sense to him because he had always had sexual partners. The PSI discloses that defendant boasted about his promiscuous behavior. The trial court asked defendant why he had bothered a mentally retarded person. Defendant said, “Your Honor,” and the trial court interrupted him and stated, “I don’t even want to talk to you.” The trial court then sentenced defendant to 30 years in prison and told him, “Get out of here.”

• 1 The first issue on appeal is whether the trial court erred in considering complainant’s mental and physical disabilities as an aggravating factor for sentencing purposes. Defendant contends that the trial court should not have considered complainant’s disabilities during sentencing because her disabilities were an implicit element of criminal sexual assault, which was based upon her inability to understand the nature of his conduct. (HI. Rev. Stat. 1985, ch. 38, par. 12—13(a)(2).) Criminal sexual assault is a Class 1 felony with a statutory sentencing range of not less than 4 years’ and not more than 15 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, pars. 12—13(b), 1005—8—1(a)(4).) In the case at bar, defendant was not sentenced for criminal sexual assault. Rather, he was sentenced to a maximum 30-year prison term for the Class X felony of aggravated criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, pars. 12— 14(a)(2), (c), 1005—8—l(a)(3).) Complainant’s inability to understand the nature of defendant’s conduct was not an element of aggravated criminal sexual assault. The relevant elements of aggravated criminal sexual assault were defendant’s use of force, his threat of force, and his infliction of bodily harm. Because complainant’s disabilities were not an element of aggravated criminal sexual assault, the trial court did not abuse its discretion in considering those disabilities as aggravating circumstances.

The next issue is whether the trial court erroneously failed to consider defendant’s rehabilitative potential and other mitigating factors. The Illinois Constitution provides in part that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) The trial court is vested with considerable discretion in imposing a sentence, and a sentence consequently will not be modified on appeal in the absence of an abuse of that discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) A sentence is presumed to be proper. (People v. Jenkins (1984), 128 Ill. App. 3d 853, 857, 471 N.E.2d 647.) The presumption may be rebutted only by an affirmative showing that the sentence imposed greatly departs from the spirit and purpose of the law or is manifestly contrary to constitutional guidelines. People v. Murphy (1978), 72 Ill. 2d 421, 439, 381 N.E.2d 677.

The spirit and purpose of the law are promoted “ ‘when a sentence reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant.’ ” (People v. Murphy, 72 Ill. 2d at 439, quoting People v. Heflin (1978), 71 Ill. 2d 525, 545, 376 N.E.2d 1367.) The trial court generally is the proper forum for determining a suitable sentence, and its sentencing decisions are entitled to great deference and weight. (People v. James (1987), 118 Ill. 2d 214, 228, 514 N.E.2d 998.) A court of review will not substitute its judgment for that of the trial court. (People v. James, 118 Ill. 2d at 228.) The trial judge is not required “to detail for the record the process by which he concluded that the penalty he imposed was appropriate.” (People v. La Pointe (1981), 88 Ill. 2d 482, 493, 431 N.E.2d 344.) Similarly, the trial court is not required to articulate its consideration of mitigating factors (see People v. Baker (1983), 114 Ill. App. 3d 803, 811, 448 N.E.2d 631) or to make an express finding that the defendant lacked rehabilitative potential (People v. Gallardo (1983), 112 Ill. App. 3d 764, 776, 445 N.E.2d 1213). Nor is the trial court required to accord greater weight to defendant’s potential for rehabilitation than to the seriousness of the crime. People v. Shumate (1981), 94 Ill. App. 3d 478, 485, 419 N.E.2d 36; People v. Hayes (1979), 70 Ill. App. 3d 811, 831, 388 N.E.2d 818.

The statutory penalty range for aggravated criminal sexual assault, a Class X felony (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(c)), is from 6 to 30 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(3).) Defendant’s 30-year sentence was the maximum penalty. During the sentencing proceedings, the trial court considered the serious circumstances of the case. Defendant sexually assaulted his 13-year-old grandniece in a basement. He admitted that he knew that she was deaf, mute, and mentally retarded. Furthermore, she was unable to walk unassisted to the basement, and the trial court consequently could have concluded that defendant physically moved her to the basement in order to molest her. Not only did defendant fail to express remorse, but the PSI indicates that he boasted of his promiscuity with other women.

Furthermore, the trial court heard the arguments of counsel in aggravation concerning defendant’s criminal history and in mitigation concerning his personal background. When defendant testified at trial, he denied that he had committed the crime and attempted to implicate one of his brothers. The trial court noted defendant’s denial and was entitled to consider defendant’s perceived perjury when sentencing him. See People v. Meeks (1980), 81 Ill. 2d 524, 536, 411 N.E.2d 9; People v. Sansorez (1987), 156 Ill. App. 3d 986, 988, 510 N.E.2d 150.

Defendant relies upon People v. Harris (1989), 187 Ill. App. 3d 832, 844-45, 543 N.E.2d 859. The defendant there was a 39-year-old financially responsible maintenance worker with no prior felony convictions who committed an act of sexual penetration upon a child by inserting his finger into her vagina. He was sentenced to 25 years in prison by the trial court. On review, the 25-year sentence was found to be excessive.

We find that there was no abuse of discretion by the trial court in this case in sentencing defendant to 30 years’ imprisonment.

The next issue is whether the trial court’s restriction of defendant’s allocution was reversible error. Section 5—4—1(a)(5) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—4—l(a)(5)) provides that the trial court shall afford defendant an opportunity to make a statement at the sentencing hearing. But the trial court’s failure to invite allocution is a technical error that can be harmless. (See People v. Lewis (1988), 175 Ill. App. 3d 156, 163, 529 N.E.2d 752; People v. Spiler (1975), 28 Ill. App. 3d 178, 182, 328 N.E.2d 201.) Defense counsel had ample opportunity to present mitigating arguments on defendant’s behalf during the sentencing hearing. Given these circumstances, we are satisfied that any error regarding allocution was harmless.

Next, defendant contends that all three convictions were based upon the same physical act and that therefore the convictions for criminal sexual assault and aggravated criminal sexual abuse must be vacated. He contends further that the remaining conviction must be remanded for resentencing by a different judge. The State concedes that the conviction for criminal sexual assault must be vacated, but contends that the conviction for aggravated criminal sexual abuse must be upheld because it was predicated upon defendant’s ejaculation on complainant, which was an act separate and distinct from the act of sexual penetration, which was the basis for the aggravated criminal sexual assault conviction. The State contends that defendant should have been sentenced to a maximum seven-year prison term for aggravated criminal sexual abuse, a Class 2 felony. Ill. Rev. Stat. 1985, ch. 38, pars. 12—16(e), 1005-8-l(a)(5).

Under People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, multiple convictions and concurrent sentences cannot be “carved from the same physical act.” Factors to be considered in determining whether defendant’s conduct constituted a single physical act or several separate and distinct acts are: (1) prosecutorial intent, as reflected in the language of the indictment; (2) the existence of an intervening act; (3) the time interval between successive parts of defendant’s conduct; (4) the victim’s identity; (5) the similarity of the acts; and (6) the location of the acts. People v. Ellis (1986), 143 Ill. App. 3d 892, 895-96, 493 N.E.2d 739.

Application of the above factors to the instant case demonstrates that defendant’s conduct constituted a single physical act. All three counts of the indictment charged defendant with offenses based upon contact between defendant’s penis and complainant’s vagina. Unlike People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802, which was cited by the State and which involved an act of fellatio in addition to an act of vaginal penetration, the case at bar involved solely an act of vaginal penetration. There was no evidence of fellatio. Furthermore, defendant committed the crime upon one victim at a single time and place. There was no evidence of any intervening act. Given these circumstances, we believe that the convictions for aggravated criminal sexual abuse and criminal sexual assault were carved from the same physical act as the conviction for aggravated criminal sexual assault. Therefore, the convictions for criminal sexual assault and aggravated criminal sexual abuse must be vacated. There is, however, no evidence in the record to suggest that those convictions influenced the trial court in imposing the sentence for aggravated criminal sexual assault. To the contrary, the trial court considered the circumstances of the crime, the PSI, and the arguments of counsel. Therefore, we decline to remand the aggravated criminal sexual assault conviction for re-sentencing.

Finally, defendant’s pro se briefs contain a number of assertions. The tenor of the briefs is best exemplified by their disclaimer that they were prepared by a “self-proclaimed Idiot Jailhouse Lawyer.” Not only are the briefs replete with sarcastic assertions describing defendant’s trial as a “thing performed like a bench trial,” a “Star Chamber,” and a “burlesque,” describing the charges as a “soap opera,” and describing defendant’s trial attorney as “no more effective than a bottomless boat,” but they also are replete with assertions that are squarely belied by the record. For example, defendant contends that he was deprived of grand jury proceedings, an indictment, and effective assistance of trial counsel. The record clearly negates these assertions. Moreover, defendant contradicts his own claim that he received ineffective assistance of trial counsel by acknowledging in his pro se materials that his trial attorney filed a motion for a new trial to enable the trial court “to clean up its acts of misconduct.”

We reject further defendant’s assertion that he was not proved guilty beyond a reasonable doubt. Three eyewitnesses discovered him in the basement with complainant. All three testified that his penis was wet and erect, and one testified that she actually saw him lying on top of complainant. There was corroborative medical evidence. Defendant made incriminating remarks, and his flight to St. Louis also was inculpatory. (See People v. Price (1987), 158 Ill. App. 3d 921, 927, 511 N.E.2d 958; People v. Donald, (1971), 132 Ill. App. 2d 598, 600, 270 N.E.2d 85.) Defendant attacks complainant’s failure to testify as a violation of the sixth amendment right to confront witnesses, but the State was not required to have complainant testify. (See People v. Nowak (1970), 45 Ill. 2d 158, 168, 258 N.E.2d 313 (State need not call all of the witnesses to a crime in proving its case).) Given the overwhelming evidence of defendant’s guilt, we are satisfied that he was proved guilty beyond a reasonable doubt.

For similar reasons, we reject his contention that he was denied effective assistance of counsel. Given the overwhelming evidence of his guilt, the outcome of the trial could not have been changed.

Finally, nothing in the record supports defendant’s assertions that the St. Louis police illegally arrested him, that the trial court was not impartial or that he is being illegally detained.

The conviction for aggravated criminal sexual assault is affirmed and the sentence of 30 years’ imprisonment is affirmed. The convictions for criminal sexual assault and aggravated criminal sexual abuse are vacated.

Judgment affirmed as modified and vacated in part.

GREIMAN, P.J., and TULLY, J., concur.

       Justice White heard oral arguments prior to his retirement. Justice Freeman heard oral arguments prior to his election to the Illinois Supreme Court. Justice Tally and Justice Greiman concurred with the decision after reviewing the briefs and the record.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD MARTIN, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 88—3415
    Opinion filed February 14, 1992.

      E. Steven Yonover and Diane C. Busch, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Walter P. Hehner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant was charged with possession of a controlled substance with intent to deliver. During the jury selection at defendant’s trial, the State possessed certain Bureau of Investigation reports which indicated that five of the prospective jurors had criminal records. These same five jurors misrepresented their criminal records on their own juror information cards. The State failed to completely disclose to the court these misrepresentations. Defense counsel requested but was denied access to the Bureau of Investigation reports. Ultimately, three of the prospective jurors were excused peremptorily, one sat on the jury, and another sat as an alternate. After trial, defendant was found guilty and was sentenced to 12 years in prison. On appeal, we consider whether the State’s utilization of the Bureau of Investigation reports denied defendant his right to an impartial jury.

We reverse and remand for a new trial.

Relevant to our disposition are the following facts as disclosed by the record. Leonard Martin, a black male, was charged with the offense of possession with the intent to deliver over 15 grams of a controlled substance. On October 17, 1988, jury selection for defendant’s trial commenced.

Among the first 12 prospective jurors called to the jury box for voir dire, three are relevant to this appeal: Janice Jannusch, James Moffet, and Raul Romero. As is customary, each prospective juror submitted a juror information card which contained the question: “Have you ever been an accused, a complainant, or a witness in a criminal case?” In response to this question, Jannusch, Moffet, and Romero denied ever having been an accused in a criminal case. However, the jurors’ Bureau of Investigation Reports (rap sheets) indicated that each had a criminal record: Jannusch had been arrested several times under a variety of aliases; Moffet had been convicted of driving under the influence of alcohol; and Romero had been arrested and convicted of several felonies including burglary and aggravated battery. The State had exclusive possession of the rap sheets.

The court questioned each prospective juror pursuant to the juror information cards. Jannusch answered, in part, that she had been a juror in a civil case eight years prior but that she could be fair and impartial in the instant case. Moffet answered, in part, that he had 10 children, worked for his wife selling religious goods, and although he had “strong feelings” about the drug problem, he could be fair in this case. Romero answered, in part, that his home had been burglarized four years earlier but that experience would not cause him to favor either side in the instant case.

At the conclusion of the questioning for these 12 prospective jurors, the State conferred with co-counsel and then requested a side bar. The following exchange ensued:

“MR. BARTOLEMENTI [Assistant State’s Attorney]: May I ask Mr. Moffet whether he ever indicated whether he was arrested before?
THE COURT: He sells religious cards with his wife and has ten kids. He never was arrested.
MR. YONOVER [Defense Counsel]: I think he should go for cause.
MR. BARTOLEMENTI: All right, Judge.
MR. YONOVER: Has he been arrested?
THE COURT: No.
MS. HANLON [Assistant State’s Attorney]: The date of birth on here is March 6,1929.
THE COURT: He is fifty-nine.
MR. BARTOLEMENTI: Okay. That’s not the guy, then. Thank you, Judge.”

The record reflects that Moffet was in fact the same person with the criminal record as indicated by the rap sheet. The State did not move to excuse Moffet, a white male, and tendered all 12 prospective jurors to defense counsel. For reasons not relevant here, defense counsel successfully moved to excuse one of the other jurors for cause. However, the court refused to excuse Moffet for cause. Defense counsel then used peremptory challenges to excuse Moffet, Romero, and 4 more of the first 12 prospective jurors. Jannusch was accepted as a juror.

The clerk then called seven more prospective jurors to replace the excused jurors. Among this group was Bertha Jefferson, a black female. Jefferson’s juror information card indicated that she was the mother of five children and an employee of a large pharmaceutical company, but the question relating to whether she had ever been arrested was left blank. Her rap sheet indicated that she had been arrested once for unlawful use of weapons and several times for gambling. During the court’s questioning, Jefferson did not disclose her criminal record. She did state that she could be fair and impartial in the instant case. Neither the State nor defense counsel moved to excuse Jefferson.

The questioning of the other prospective jurors continued during which time defense counsel exercised his last peremptory challenge. For reasons not relevant to this appeal, the trial court excused other jurors for cause.

The court tendered the panel to defense counsel. Having used all of his peremptory challenges, defense counsel retendered the jury to the State. The State moved for a side bar. The State revealed that, according to her rap sheet, Jefferson had a criminal record. Therefore, the State asked that she be excused for cause. Defense counsel objected to the challenge for cause because Jefferson had stated that she could be fair and impartial. Instead, defense counsel suggested that Jefferson be questioned farther outside the presence of the jury.

Also at that time, defense counsel requested that the rap sheets in the exclusive possession of the State be made available to him. The court stated defense counsel had no right to the rap sheets. Defense counsel argued that defendant was at a disadvantage without the information. The court responded:

“If it isn’t on here [referring to the juror information cards], they bring it up so they never finish selecting a jury knowing more than you know.”

Defense counsel then moved for a mistrial. Defense counsel argued that the State was disclosing the information contained in the rap sheets on a selective basis and with an improper purpose. The State disclosed the information concerning Jefferson because the defendant was black and the State wanted to exclude her as a black juror. In further support of his argument, defense counsel alleged that Moffet, a white juror, also had a criminal record but the State did not disclose the information on his rap sheet.

The court again addressed the question concerning Moffet’s criminal record. The court questioned the State: “He said you are accepting a juror who has a conviction. Is that right or wrong?” The State answered, “Wrong.”

The court then proceeded to question Jefferson out of the presence of the jury. She admitted that she had been arrested once for the unlawful use of a weapon and three times for gambling. As to the weapons offense, she explained that she did not understand that she could not carry a gun on the street for which she had a permit. She also explained that she thought all of her offenses were misdemeanors which did not apply to the question on the juror information card. The court concluded that Jefferson should be excused, but not for cause. The State exercised a peremptory challenge to excuse Jefferson.

Twelve jurors were ultimately accepted leaving the selection of two alternate jurors. Sterling Nicholson was among the prospective alternates. Nicholson denied that he had ever been an accused in a criminal case on his juror information card. His rap sheet indicated that he had been charged with a misdemeanor in 1976. Neither the State nor the court’s questioning disclosed that fact. Sterling was accepted as an alternate juror.

At the end of the voir dire, defense counsel renewed his motion for a mistrial based, in part, upon the State’s exclusive possession of the rap sheets which resulted in unfairness to defendant. The motion was denied.

The case went to trial after which the jury found the defendant guilty for the offense charged. In a post-trial motion, defendant alleged, in part, that the trial court erred in denying defense counsel access to the rap sheets. In the motion’s supporting memorandum, defendant alleged that defense counsel was not permitted to inspect the rap sheet nor was any in camera inspection held. The motion was denied.

During the defendant’s sentencing hearing, the trial court addressed the points raised in defendant’s post-trial motions. First, the court conceded that a mistake had been made concerning the identity of James Moffet. However, the court denied the allegations that defense counsel had not been permitted to inspect the rap sheets and that no in camera inspection was held. The court stated that a side bar was held which was “the equivalent of an in camera inspection” and during that time defense counsel looked at the rap sheets.

Defendant filed this appeal. Defendant moved to include the rap sheets as part of the record on appeal. The State vigorously objected. After some delay, the rap sheets were made part of the record. In defendant’s brief, defense counsel vigorously denies that any in camera inspection occurred or that he ever looked at the rap sheets.

Opinion

The record presents several grave errors concerning the jury selection in this case. Therefore, we hold that defendant is entitled to a new trial. In our analysis, we focus on whether the State’s utilization of the rap sheets denied the defendant his right to an impartial jury.

The State argues, in part, that defendant could not have been denied his right to an impartial jury based on “the non-disclosure of documents the Illinois Supreme Court has determined he is not even entitled to.” The State relies on People v. Franklin (1990), 135 111. 2d 78, 552 N.E.2d 743. We find that the State’s reliance on Franklin confuses the question whether defendant is entitled to possession of the rap sheets with the question whether the State’s utilization of the rap sheets denied defendant his right to an impartial jury.

In Franklin, the State examined the rap sheets of four prospective jurors and then disclosed to the trial court that the four had misrepresented their criminal records during voir dire. The trial court excused all four for cause. The defendant was ultimately convicted of murder and sentenced to death.

On direct appeal, the supreme court addressed whether defendant was entitled to possession of the rap sheets. The court held that Supreme Court Rule 412(c) (107 Ill. 2d R. 412(c) (requiring the State to disclose information tending to negate the guilt of a defendant)) did not apply. The court reasoned that the rap sheets did not contain any information that was either favorable or unfavorable to the defendant; they merely contained information relating to the prospective jurors. On these grounds, defendant was not entitled to possession of the rap sheets.

The court continued to consider, however, whether “[t]he State’s use of [the rap sheets] helped to ensure that both the defendant and the State would receive a trial by a fair and impartial jury.” (Franklin, 135 Ill. 2d at 95-96, 552 N.E.2d at 751.) The court concluded that the State properly used the rap sheets because the State disclosed to the trial court the misrepresentations. Because of the disclosure, the jury did not ultimately include the four venirepersons who demonstrated a lack of truthfulness and veracity. In regard to the exclusion of these jurors, the court commented “[a] venireperson's lack of veracity in no way promotes the administration of justice and cannot be deemed beneficial to the accused’s or the State’s case in chief.” Franklin, 135 111. 2d at 95, 552 N.E.2d at 751.

Here, we do not maintain that defendant had a right to possession of the rap sheets. However, unlike Franklin, the State’s use of the rap sheets here did not help to ensure that defendant would receive an impartial jury. The State did not completely disclose to the trial court the misrepresentations. Because of this failure, the jury did ultimately include venirepersons who demonstrated a lack of truthfulness and veracity. The State suggests that “simple oversight is the reasonable explanation why the [State] did not inquire about the criminal histories of Janice Jannusch and alternate Sterling Nicholson.” This suggestion is not persuasive. Whether the State’s use of the rap sheets was the result of simple oversight or knowing misrepresentation, the fact remains that jurors with a lack of veracity sat on defendant’s jury. These jurors cannot be deemed to have been beneficial to the defendant’s case. Therefore, defendant was denied his right to an impartial jury.

In closing, we find that the additional issues raised by the State are without merit. Accordingly, defendant is entitled to a new trial.

Reversed and remanded for a new trial.

McNULTY, P.J., and MURRAY, J., concur.