author: Mr. JUSTICE BARRETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stanley Durham, Defendant-Appellant.
    (No. 58824;
    First District (5th Division)
    October 11, 1974.

      James J. Doherty, Public Defender, of Chicago (Edmund B. Moran, Jr., and John T. Moran, Jr., Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Stanley L. Hill, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Defendant was charged with the offense of theft. (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1.) After a bench trial, he was found guilty and was sentenced to a term of 30 days in the House of Correction.

On appeal, defendant raises three contentions: (1) the record does not reflect that he knowingly and understandingly waived his right to trial by jury; (2) statements made by him during the course of a custodial interrogation were improperly admitted into evidence; and (3) certain hearsay testimony was prejudicial.

I.

Defendant’s case was called for trial along with the cases of a Mr. Long and a Mr. Arnold. The following occurred:

“MR. SIMKIN [Assistant State’s Attorney]: We will be ready to dispose of this matter.
THE COURT: Are you ready for trial? Do you have an attorney?
MR. DURHAM [defendant]: No.
THE COURT: I will appoint the Public Defender. Pass it.” After an interval of time, the following proceedings were had: “MR. SIMKIN: Mr. Long’s case has been nolle’d, or SOL’d. Mr. Arnold is one year probation.
Have you talked to Mr. Durham?
MR. LASKO [Assistant Public Defender]: We are ready for trial on that one.
MR. SIMKIN: The state will answer ready for trail [sic] on Mr. Durham. We will be ready.
THE COURT: Mr. Durham is charged with petty theft. What is the plea?
MR. DURHAM: Not guilty.
THE COURT: Do you waive jury trial?
MR. LASKO: Jury waived.
THE COURT: Swear the witnesses.”

The Illinois Code of Criminal Procedure provides that “[e]very person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.” (Ill. Rev. Stat. 1973, ch. 38, par. 103 — 6.) Whether the right to trial by jury has been knowingly and understandingly waived must be decided on the particular facts of each case and cannot be determined by any precise formula. (People v. Gay, 4 Ill.App.3d 652, 281 N.E.2d 738.) Our review of the opinions dealing with the issue shows, however, that even in cases presenting virtually identical facts, this court has reached opposite conclusions. The supreme court has recently allowed leave to appeal in a case having facts similar to those of the case at bar, People v. Brodus, 19 Ill.App.3d 840, 313 N.E.2d 511. At present we are constrained to consider the apparently conflicting opinions of this court in reaching our decision.

The supreme court has considered the issue before us under somewhat different facts in People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397. In that case, defense counsel, in the presence of the defendant and without objection on her part, expressly advised the court that the plea was “not guilty” and that a jury was waived. In holding that the waiver was understandingly and knowingly made, the court noted that.an accused ordinarily speaks and acts through his attorney, who stands in the role of agent. It held that a defendant, by permitting his attorney, in his presence and without objection, to waive his right to a jury trial is deemed to have acquiesced in, and to be bound by, his action. He is not permitted to complain of an alleged error which was invited by his behavior and that of his attorney. People v. Sailor, 43 Ill.2d at 260-261.

In Sailor, the supreme court reaffirmed the general principle that the trial court has a duty to see that the election of the accused to forego a trial by jury was understandingly and knowingly made. But it specifically held that the trial court, in fulfilling this duty, is entitled to rely on the professional responsibility of defense counsel that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client.

The Sailor case did not discuss the application of its holding to court-appointed counsel. This court has concluded that there is no distinction made between jury waivers by privately retained counsel and by court-appointed counsel insofar as the responsibility of counsel or the effectiveness of the waiver are concerned. The Sailor rule applies to both. People v. Suriwka, 2 Ill.App.3d 384, 276 N.E.2d 490.

Although the applicability of the Sailor rule to court-appointed counsel has repeatedly been recognized, several cases have arisen in which the Sailor rule has been limited and an express jury waiver by court-appointed counsel has been held not to be knowingly and understandingly made.

The first of these cases was People v. Baker, 126 Ill.App.2d 1, 262 N.E.2d 7. In that case the proceedings commenced as a preliminary hearing of a felony and then became a trial of a misdemeanor. The court appointed the public defender to represent the defendant and his co-defendant. After a “discussion off the record,” the public defender was asked whether he was ready. He answered, “Ready for a hearing,” “Not guilty, Jury waived.” In the original opinion, filed before the decision in Sailor, the court held that when a defendant is charged with a serious offense and the record does not affirmatively show he knew or was informed of his right to trial by jury, his waiver of a jury is not made knowingly and understanding^, despite his counsel’s express assertion to the court that the jury was waived. (126 Ill.App.2d at 5.) Subsequent to the decision in Sailor, the court granted a rehearing. In a supplemental opinion the court took judicial notice that a “discussion off the record” is usually a hurried exchange of words and is neither a pause nor a recess for explanation of the meaning of trial by jury to a defendant who initially appeared in court without counsel. In view of the fact that the defendant appeared in court without counsel, went to trial with a lawyer furnished him a few moments before trial, and did not have a meaningful opportunity to consult with his newly acquired counsel, the court found the rule in Sailor to be inapplicable and the attempted jury waiver to be ineffective. 126 Ill.App.2d at 5 — 9.

In People v. Boyd, 5 Ill.App.3d 980, 284 N.E.2d 699, the Public Defender was appointed, he and the defendant “conferred,” and the attorney told the court that his client waived his right to jury trial. Noting that there was no recess in the proceedings for the defendant to consult with his newly acquired counsel, the court found the factual situation to be practically identical to that of People v. Baker. It held that the defendant did not knowingly and understandingly waive his right to a jury trial, and that “the rule of the Sailor case does not apply to a case in which a defendant appears in court without counsel and is furnished one the moment when he goes to trial and the record does not show that the defendant knew or was informed of his right to trial by jury.” 5 Ill.App.3d at 982 (emphasis added).

In the instant case, defendant was not furnished counsel the moment he went to trial. Unlike the facts of Baker and Boyd, the record in this case indicates that the case was passed after the public defender was appointed. A recess in the proceedings occurred. We are unable to ascertain from the record the length of that recess, except to be sure that it was of sufficient duration to allow defense counsel and the State’s Attorney to agree that one of the accused would plead guilty and to permit the State’s Attorney to consult with the complainant and decide that charges against another defendant would be stricken with leave to reinstate. Nevertheless, we believe the Sailor case permits us to infer that the recess was long enough for counsel to discuss with his client the meaning of jury waiver. The Baker and Boyd decisions do not forbid us from relying on the professional responsibility of counsel that when he informed the court, in the presence of his client, following a recess in the proceedings, that his client waived a jury, the waiver was knowingly and understanding^ consented to by his client.

Furthermore, the limitation placed on the Sailor rule by Baker and Boyd has been rejected in several cases. In People v. McClinton, 4 Ill.App.3d 253, 280 N.E.2d 795, the court found that nothing in the Sailor opinion requires as a condition precedent to a valid jury waiver that the record affirmatively reflect that a defendant and his appointed counsel were afforded an opportunity for consultation. In People v. Davis, 21 Ill.App.3d 201, 315 N.E.2d 43, the court held that the public defender’s statement, “Plea of not guilty, waive trial by jury,” was a valid jury waiver following a “conference * * * off the record” between the defendant and his newly-appointed counsel. Mr. Presiding Justice Hayes, specially concurring, noted that the court was rejecting Baker and relying on People v. Nogas and People v. Morgan.

The relevant facts of People v. Morgan, 18 Ill.App.3d 153, 309 N.E.2d 331, are similar to those of the case at bar. The record there indicated that “an interval of time” passed after the public defender was appointed, during which there was a pre-trial conference with the State’s Attorney. Defense counsel stated that “Mr. Morgan is ready for trial. The plea is not guilty, and we wish to be tried by this Court.” On appeal the court rejected the Baker and Boyd limitation of the Sailor rule and held that the defendant knowingly and understandingly waived his right to jury trial. ......

In People v. Nogas, 18 Ill.App.3d 279, 309 N.E.2d 651, the facts were strikingly similar to those of the case at bar. They differed from those of Baker and Boyd largely in that the record indicates that the proceedings were “halted and resumed.” The court stated that during the time that elapsed betweeen the appointment of the public defender and the beginning of trial, it appeared that the public defender conferred with the defendant and that the defendant agreed to waive jury trial. Once again, the court refused to apply Baker and Boyd.

And in People v. Lewis, 13 Ill.App.3d 688, 301 N.E.2d 159, the public defender was appointed and the case was passed. In the ensuing proceedings defense counsel stated twice that the jury was waived, and the defendant stood silent. The court distinguished Baker and Boyd and found that the defendant knowingly and understandingly waived his right to a jury trial.

We note that the circumstances of the instant case differ from those of People v. Mitchell, 21 IH.App.3d 171, 315 N.E.2d 101. In that case, the matter was “momentarily passed” after defense counsel was appointed. At the hearing on the defendant’s motion for a new trial, defendant’s un-contradicted testimony was that he conferred with his counsel for not more than 2 minutes. Furthermore, the defendant was only 17 years old and had no prior experience in court.

In the instant case the record shows that the defendant had a prior conviction. This is an important factor in determining whether the jury waiver was understandingly made. (People v. Gay, 4 Ill.App.3d 652, 281 N.E.2d 738.) And the fact that defendant entered his own plea immediately before defense counsel waived the jury supports the inference that the instant defendant’s silence was an act of acquiescence rather than the product of timidity.

We recognize that this court has occasionally applied the Baker limitation to cases where the record affirmatively shows that defendant had an opportunity for consultation with his newly appointed attorney during a recess in the proceedings. For example, in People v. Brodus, 19 Ill.App.3d 840, 313 N.E.2d 511, the court, faced with facts similar to those of the instant case, refused to infer that in the interval of time between defense counsel’s appointment and trial, counsel spoke with his client and advised him of his right to trial by jury. We would agree with the conclusion reached by Mr. Justice Johnson in dissent, that the Sailor case authorizes us to make precisely that inference. Such an inference is not far reaching; it rests on the assumption that the defense counsel and the trial court judge were fulfilling their legal and professional responsibilities. Of course, were it to appear in a particular case that the assumption is unwarranted, our conclusion would differ.

The refusal to make the aforementioned assumption seems to be leading to the development of different rules for those represented by counsel appointed the day of trial and for those represented by counsel secured prior to the day of trial. If this is so, in deciding the validity of a jury waiver, we will need to determine when counsel was secured. If the record is silent, which it often is, we will be forced to infer this fact from the circumstances of each case, thus resting our opinions on compound inferences. See People v. Murrell, 20 Ill.App.3d 789, 314 N.E.2d 467; People v. Taylor, 13 Ill.App.3d 253, 300 N.E.2d 862.

The oft-quoted observation in People v. Bell, 104 Ill.App.2d 479, 244 N.E.2d 321, bears repeating:

“It takes but a few moments of a trial judge’s time to directly elicit from a defendant a response indicating that he understands that he is entitled to a jury trial, that he understands what a jury trial is, and whether or not he wishes to be tried by a jury or by the court without a jury.” (104 Ill.App.2d at 482.)

Were our trial courts to spend those few moments and elicit an express waiver of jury trial by each defendant personally, the rights of the accused, particularly of those who are ignorant and frightened, would receive additional protection. The certainty afforded by a defendant’s personal, express waiver of jury trial would reduce the number of appeals on this issue and aid this court in determining the appeals that did arise.

We have examined the United States Supreme Court decisions cited by defendant in his brief, including Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041. None of those cases requires that a defendant personally express his desire to waive trial by jury.

II.

Defendant's second contention is that oral statements elicited from him during the course of a custodial interrogation by the police were erroneously admitted into evidence because defendant was not apprised of his constitutional rights in accordance with the opinion in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. Specifically, defendant claims that the police failed to inform him that he had a right to have an attorney appointed for him prior to interrogation.

The record discloses that at trial the arresting officer testified that before questioning defendant, he read certain warnings to him from a card. The warnings were as follows:

“[Y]ou have a right to remain silent; anything you say can be used against you; that you have a right to have an attorney present before answering any questions; and if you cannot afford an attorney the Court will appoint one for you.”

After the officer read the warnings to defendant, defendant was allowed to read the warnings from the card. After defendant read the warnings, the officer asked him whether he understood his rights. Defendant answered yes.

Defendant concedes that he was informed of his right to have an attorney present before he answered any- questions. But he maintains that the “obvious implication” of the warning that if defendant lacked funds the court would appoint an attorney for him was that defendant had the right to have an attorney appointed when he went to court and not before. We cannot agree.

' In People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601, our supreme court noted that the Miranda opinion does not specify the precise language to 'be"used in advising a suspect of his rights. All it requires is an intelligent conveying to the individual involved of the rights set forth in the opinion. (53 Ill.2d at 67.) In Prim, the defendant was advised of his rights, including that if he didn’t have money for an attorney, the state would provide him with one. Noting that all of the warnings related to the giving of a statement during the contemplated police interrogation, the supreme court found that it would be a strained construction of the languáge used to say that it conveyed the meaning that an attorney would be furnished at some future time. Although one part of the warnings viewed by itself may have been subject to a different interpretation, the court found that when viewed in the context of the entire discussion, the part in question could have referred only to the right to have counsel provided for the defendant at the time of the interrogation. 53 Ill.2d at 67.

The warnings in the instant case are substantially similar to those in the Prim case. Taken in context, we believe that defendant was adequately informed of his rights. Thus his statements were properly admitted into evidence.

III.

Defendant’s final contention is that he was prejudiced by inadmissible hearsay testimony. The complainant, during cross-examination by defense counsel, testified that one of the co-defendants admitted that he and defendant had found the allegedly stolen property in complainant’s yard. The assistant State’s Attorney objected “to any statement as to the other defendants. It could be prejudicial in this case.” Defense counsel responded that “[it] could be. And it could be exculpatory of the defendant.” With the court’s permission, the complaining Witness continued by saying that “[o]ne of the other defendants had implicated Mr. Durham. He said they had gone into my apartment.” Defense counsel moved that “any remarks implicating this man be stricken, any remarks by the other men.” The trial court’s enigmatic ruling was, “You asked the question.”

Defendant was tried by a judge, who is presumed to base his findings only upon competent evidence. (People v. Hayes, 3 Ill.App.3d 1027, 279 N.E.2d 768.) The record supports this presumption. In summarizing the complainant’s testimony, the judge stated:

“[Complainant] asked [defendant] the question: ‘Why did you go into my apartment?’
[Complainant] said the defendant’s answer was: ‘I don’t know.’ Then he went on with a further conversation, saying he didn’t go into the apartment, but he took things from the yard.”

Not only did the judge exclude from his account of what had occurred at trial complainant’s references to the statements of others, but defense counsel himself proceeded to ask the complainant whether defendant himself admitted entering the apartment and whether it was another defendant who “said something.” Defendant may not complain if he has procured, invited, or acquiesced in the admission of improper evidence. People v. Burage, 23 Ill.2d 280, 178 N.E.2d 389.

For the reasons stated, the conviction of defendant is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DRUCKER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Robert Arthur Norris et al., Defendants-Appellees.
    (No. 59293;
    First District (5th Division)
    October 11, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
    Frederick F. Cohn, of Chicago, for appellee Robert Arthur Norris.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Defendants, Robert Norris and William Sorenson, were charged with the crimes of murder and armed robbery. On their motion the court below suppressed the prosecution identification testimony of Helen Myrus, and the cause was stricken with leave to reinstate. Pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1971, ch. 110A, par. .604) the State appeals, contending that (1) the pre-trial photographic and lineup identification procedures utilized by the police were not suggestive and (2) even if these procedures were suggestive, the identification of defendants was of an origin independent of and untainted by these observations of them.

Indictments were returned charging defendants with the December 4, 1971, murder and armed robbery of Dr. Frank Sadowski. They moved that the identification testimony of one Helen Myras be suppressed.

The motion to suppress was heard simultaneously with the trial.' The motion was sustained and a mistrial declared with leave to the State to reinstate.

Miss Myras testified for the State that on the date in question she was employed as a clerk at the Adams-Woods Pharmacy located at 5258 West Fullerton in Chicago. Adjoining the pharmacy is a medical center in which Dr. Sadowski maintained his offices. Between 8:30 and 9 P.M., while working behind the counter, she noticed two people buying candy. There were no other customers in the pharmacy; it is well illuminated by fluorescent lights. She observed the men for approximately 5 minutes. She identified defendants as the men she saw in the pharmacy. After the men purchased some candy, she noticed that they entered the medical center. A few minutes later one of the men returned. He was carrying a large, old-fashioned black medical bag which she had seen previously in the possession of Dr. Sadowski. She identified Norris as the man carrying the bag. Sorenson was not with him at this time. Norris was walking hurriedly, carrying the bag in his right hand and “trying to cover his mouth.” A few minutes later she saw Dr. Sadowski. He was covered with blood. He had a cut under one eye, and his head and neck were bruised. On the evening of December 4 she was shown a group of seven or eight photographs by a Detective Hagen and was able to identify some of them. The following day she was shown a second group of photos, and she identified some of these as well. After December 5, 1971, she saw defendants several times in the Criminal Courts Building. In March of 1972 she identified them in a lineup. A photo of the lineup was introduced into evidence. She marked an “x” over the people she identified. They were Norris and Sorenson.

On cross-examination by counsel for Sorenson, Miss Myrus testified that she had not seen defendants at any other time on December 4. She had not seen the photos that the police had shown her during the days immediately following the attack on Dr. Sadowski from the time of her identification of defendants until she had been shown the pictures on direct examination. Counsel commingled the photographs shown to her on December 4 and 5. She could not separate them into the group which she had seen on the evening of the crime and the group she had seen the following day. However, she could pick out the photos she had previously identified.

On cross-examination by counsel for Norris, Miss Myrus testified that she had seen defendants in the store prior to December 4, 1971, but they had never spoken with her and she did not know them by name. When Norris reentered the pharmacy carrying Dr. Sadowski’s medical bag, he walked directly past her. He was about 30 feet away, walking hurriedly. She was not positive but thought that he was carrying the bag in his left hand. She had seen Dr. Sadowski carry the bag many times. She could not remember whether, during the days immediately preceding trial, she had been shown photographs by the State’s attorney.

The court then proceeded to hear defendants’ motion to suppress the in-court identification of Miss Myrus. She was called by defendants and testified that she had previously seen defendants in Judge Sulslci’s court but could not recall the date; this was prior to the lineup which she had viewed.

The court then examined the witness as to whether she had seen defendants in court prior to the lineup. She testified, “I don’t know. See, I had been here so many times I am not sure if I had seen them prior or not. This is what I can’t remember because I had been here so many times.”

Officer Howard Hagen of the Ch’cago Police Department testified for the State that on December 4, 1971, he was assigned to investigate an incident involving Dr. Frank Sadowski. That evening, during the course of his investigation, he showed a group of photographs to Miss Myrus, and she identified one of Sorenson. The following day he showed the same group of photographs to Edward Putera, who had also been in the pharmacy on the night in question. He too identified one of Sorenson. Sorenson was arrested on December 8. When arrested, he admitted being at Dr. Sadowski’s office on December 4 and implicated Norris. Hagen had Norris photographed. This picture was included in a group of photos shown to Miss Myrus. She identified one of Norris and one of Sorenson. Hagen recalled several occasions during the months of February and March when Miss Myrus was asked to come to the Criminal Courts Building. On none of these occasions was she in the courtroom when defendants were brought out. On April 6 he was present at a lineup at which Miss Myrus identified defendants.

On cross-examination Hagen testified that on those occasions that Miss Myrus was requested to come to court, she was asked to wait in the hall when the case was called.

Officer Joseph Myrus testified for the State over defense objections. He is the brother of Helen Myrus. He accompanied his sister when she was asked to come to the Criminal Courts Building. At no time was she in the courtroom when defendants were present. On cross-examination he admitted that he did not accompany his sister to court when she was summoned on April 5.

Edward Putera, a pharmacist, testified for the State that on December 4, 1971, he was employed by the Adams-Woods Pharmacy. He noticed someone carrying a doctor’s bag come out of the waiting room of Dr. Sadowski’s office. He asked the man what was happening and received the reply that the doctor was going on a house call. There was someone behind the man with the bag, but Putera could not see his face. He identified the man carrying the bag as Sorenson. Several minutes after his conversation with Sorenson he saw Dr. Sadowski, who was bruised and bloody. The following day he identified some photos from a group shown to him by Officer Hagen. On cross-examination Putera stated that he had seen defendants in court on five or six occasions.

Officer Robert Shanahan of the Chicago Police Department testified that he conducted the lineup on April 6, 1972. Prior to the lineup he told Miss Myrus that she would be shown a lineup and asked if she could identify anyone. There were other officers present at the lineup, but to his knowledge they did not speak to Miss Myrus. On several dates prior to the lineup he had been in the courtroom when the case had been called. Miss Myrus was not present in the courtroom on any of these occasions.

Thereupon the court suppressed the identification testimony of Miss Myrus and struck the cause with leave to reinstate.

Opinion

Defendants moved to suppress the identification testimony of Helen Myrus, alleging that it was “induced through the actions of the Chicago Police Department.” Thus it was their burden to prove, by a preponderance of the evidence (People v. Johnson, 45 Ill.2d 38, 257 N.E.2d 3) that the procedures utilized by the people were so suggestive that they gave rise to a substantial likelihood of irreparable misidentification. See Simmons v. United States, 390 U.S. 377.

Miss Myrus made her initial identification of defendants when she was shown' two groups of photographs by Officer Hagen within a short time after the attack on Dr. Sadowski. Courts, while noting “the potential for incorrect identifications” inherent in the use of photographs, are unwilling to “constitutionally prohibit such identification procedures.” (People v. Cooper, 9 Ill.App.3d 291, 295, 292 N.E.2d 79; see also Simmons v. United States.) Rather, recognizing that the “practice of showing photographs of suspects to witnesses is essential to effective law enforcement,” (People v. Brown, 52 Ill.2d 94, 99, 285 N.E.2d 1), the rule has been established that each case in which the photographic identification of the defendant is challenged “must be considered on its own fáctS, and that convictions based on eyewitness identification at trial foHowing a pretrial identification by photograph wül be set aside on that ground only if the photographic identification procedure was so .impermissibly suggestive as to give rise to a vety substantial likelihood of irreparable misidentffication.” (Simmons, at 384.) • Thus, for example, where a color photograph of the defendant was included in a series of' blabk and white photos, the procedure was deemed “undesirable” since it woxild indicate to a witness that police attention had been narrowed to that individual. (People v. Jackson, 54 Ill.2d 143, 295 N.E.2d 462.) However, where the record does not reflect that the police in any manner directed a witness’ attention to a defendant’s photograph or suggested that it was the defendant who committed the crime, courts have refused to suppress photographic identifications. See People v. Jackson, 12 Ill.App.3d 789, 299 N.E.2d 142.

In the instant case defendants introduced no evidence whatsoever that the photographic identification procedures used by the police were improper. Rather, the record reveals that on the evening of December 4, 1971, Miss Myrus observed defendants for a period of 5 minutes under good fighting conditions as they were buying candy. She had a second opportunity to observe Nonas when he returned to the pharmacy carrying Dr. Sadowski’s medical bag. Later that night she was shown seven or eight photos by Officer Hagen. From these Miss Myrus identified one of Sorenson. Pursuant to this lead Hagen anested Sorenson who then implicated Nonas. Miss Myrus was subsequently shown a second group of photos from which she identified both, defendants. The photos are all multipose, color pictures of white men dressed in casual attire. Miss Myrus and Officer Hagen were questioned extensively concerning these photographic identification procedures. No hint of suggestive police conduct was adduced." Indeed, it was precisely the use of such non-suggestive procedures leading to the apprehension of suspected criminals that the supreme court in Simmons had in mind when it refused to totally prohibit the use of 'photographs, and therefore we believe that the trial court’s order suppressing the instant photographic identification is against the manifest weight of the evidence.

On April 6, 1972, Miss Myrus identified defendants at a lineup conducted by Officer Shanahan. Defendants also moved to suppress this identification.

On a motion to suppress a lineup identification, as on a motion to suppress a photographic identification, the “burden is upon the defendant to establish that the circumstances attending the lineup were so suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (People v. Davis, 21 Ill.App.3d 177, 315 N.E.2d 79 2; see also People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1; People v. Pagan, 52 Ill.2d 525, 288 N.E.2d 102.) Defendants attempted to sustain their burden merely by pointing to the fact that they were dressed in a slightly different manner than the other members of the lineup. However, the record reveals that their questioning of Miss Myrus was entirely insuccessful in establishing that her identification was predicated only upon this fact. (See Davis.) Moreover, a photograph of the lineup demonstrates that it was comprised entirely of white men of approximately the same age, height and build. Although Norris was the only individual wearing a collarless shirt and only he and Sorenson wore sandals, their manner of dress was only slightly dissimilar from the informal appearance of the other participants in the lineup. Under these circumstances it is clear that the court below erred in ruling that these lineup procedures were impermissibly suggestive.

Finally, we note that there were some discrepancies in Miss Myrus’ testimony. However, these discrepancies bore only upon matters collateral to the issue of whether suggestive police procedures were used to elicit her identification of defendants. We believe that the record is clear that defendants did not prove by a preponderance of the evidence that these identification procedures were fatally defective and therefore the trial court erred in suppressing Miss Myrus’ identification testimony. The order suppressing the identification is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

SULLIVAN, P. J., and LORENZ, J., concur.

       Defendant Sorenson has not filed an appearance or a brief. The record reveals that the State, appellant in this case, complied with the prescribed notice requirements. This failure by Sorenson is sufficient to allow us to summarily reverse the judgment of the trial court with regard to him. However, we believe that the ends of justice are better served by allowing litigation to be determined according to the substantive rights of the parties and not by procedural default. See Bailey v. Bailey, 18 Ill.App.3d 152, 309 N.E.2d 328.


author: Mr. JUSTICE LORENZ

text:
    James S. Zieler, Plaintiff-Appellee, v. The Village of Oak Lawn et al., Defendants-Appellants.
    (No. 59321;
    First District (5th Division)
    October 11, 1974.
    Ralph L. Rehnquist, Kozlowski & Smith, and Peterson, Ross, Rall, Barber & Seidel, all of Chicago (Ralph L. Rehnquist, Joseph J. Kozlowski, John A. Smith, Elroy C. Sandquist, Jr., and John W. McCullough, of counsel), for appellants.
    George D. Hanus, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendants Village of Oak Lawn and Oak Lawn Police and Fire Commission appeal from that portion of a judgment ordering the issuance of a writ of mandamus directing them to permit plaintiff to take a police sergeants’ qualifying examination. They contend that: (1) new parties and issues cannot be introduced 5 years after a final judgment has been rendered and satisfied, and (2) a police officer must meet the same standards to take promotional examinations as for original appointment.

Defendant Oak Lawn Police Pension Fund appeals from those portions of the same judgment which direct it to permit plaintiff to become a police-pension-fund member and to participate in pension-fund elections. It contends that: (1) the trial court lacked subject matter jurisdiction, (2) the action was barred by laches, (3) barring plaintiff’s participation in the fund was correct, and (4) prohibiting plaintiff’s participation in pension fund elections was correct.

The following facts are pertinent to this appeal.

On November 30, 1966, plaintiff filed a petition for a writ of mandamus alleging that the Oak Lawn Police and Fire Commission had authorized his appointment as an Oak Lawn probationary police officer despite the fact that his left foot had been amputated below the ankle, but that the Village of Oak Lawn had refused to permit him to undertake his duties. The Police and Fire Commission and the Pension Board were not parties to this action.

On March 23,1967, the court ordered that a writ of mandamus be issued against the Village of Oak Lawn, the village trustees, the village manager, the village clerk, the village finance director, and the chief of police commanding them to do the following:

“A. To forthwith place the name of the plaintiff herein, JAMES S. ZIELER, upon tire official payroll of the Village of Oak Lawn as a probationary patrolman.
B. To immediately thereafter assign the plaintiff to such regular duties as are legally assigned to probationary police officers of the Village of Oak Lawn.
C. To permit the plaintiff to embark upon his duties as a probationary police officer of the Village of Oak Lawn without interference or prejudice on the part of all or any of the defendants named herein.
D. To pay to the plaintiff, JAMES S. ZIELER, the established salary, in such an amount and at such times as shall be fixed by ordinances of the Village of Oak Lawn in such cases made and provided.”

This order conformed fully with plaintiff’s prayers for relief.

No further action was taken in the case until March 29, 1972, when plaintiff filed a notice directed to the Village of Oak Lawn, its trustees, its chief of police, the Oak Lawn Fire and Police Commission and its commissioners, and the Oak Lawn Pension Fund and its trustees. The notice informed those parties of plaintiff’s intent to file a petition for a rule to show cause why they should not be held in contempt of court for failing to comply with the court’s order of March 23, 1967. The petition was filed and a rule to show cause was entered.

Prior to any court hearing on the rule to show cause, the Oak Lawn Pension Fund and its trustees and the Oak Lawn Fire and Police Commission and its commissioners filed their special and limited appearances contesting the court’s jurisdiction. On May 9, 1972, on plaintiff’s motion and over defendants’ objections, the court ordered that these defendants be joined in the case.

Plaintiff then filed a petition for writ of mandamus alleging: (1) that the Police and Fire Commission had improperly refused to permit plaintiff to take the sergeants’ examination, and (2) that the Police Pension Fund had improperly refused to permit him to vote in the elections of or to be a candidate for trustee of the pension fund. Plaintiff’s petition prayed that the court enter a writ of mandamus requiring the defendants to:

“1) Place the Plaintiff on the rolls of the Oak Lawn Pension Fund, nunc proc tunc, March 23, 1967;
2) Allow the Plaintiff to immediately take a sergeant’s qualifying examination;
3) Void the most recent election of the Oak Lawn Police Pension Board and immediately hold another election in which the Plaintiff can both vote and run for office.
4) To permit the plaintiff to embark upon his duties as a patrolman of the Village of Oak Lawn without interference or prejudice.”

Following an evidentiary hearing on the petition for a writ of mandamus, an order authorizing the issuance of the writ was entered commanding the following:

"A) To permit the plaintiff, JAMES S. ZIELER, to take the next regularly scheduled promotional examination given for the rank of sergeant.
B) To place the name of the plaintiff herein, JAMES S. ZIELER, upon the official rolls of the Oak Lawn Police Pension Fund.
C) To permit the plaintiff, JAMES S. ZIELER, to participate in Pension Fund elections as any other Pension Fund member.
D) To permit the plaintiff, JAMES S. ZIELER, to continue his duties as an Oak Lawn Police Officer and embark as a Pension Fund member without interference or prejudice on the part of all or any of the defendants named herein.
E) To pay to plaintiff $169.84 in court costs.”

Defendants appeal from this order.

Opinion

The Village of Oak Lawn and the Oak Lawn Police and Fire Commission first contend that new parties and issues cannot be introduced 5 years after a final judgment has been rendered and satisfied. Defendants point out that neither the Police Commission nor the Pension Fund were parties to the original mandamus proceedings; that the original mandamus had nothing whatever to do with sergeants’ examinations or pension fund elections; that the March 23, 1967, judgment had been satisfied; and that 5 years had elapsed since any action had been taken in the case.

Plaintiff offers three theories to justify his course of action. He argues: (1) that the March 23, 1967, order was continuing; (2) that new parties may be added after judgment as permitted by section 26 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 26); and (3) that no injury resulted by proceeding in such a manner.

Plaintiff initially argues that the March 23, 1967, order imposed on all the defendants a continuing obligation not to discriminate against him. However, the terms of that order do not support his position. First, the order was limited to the employment of plaintiff as a probationary police officer; nothing in its terms indicate that it extends beyond that probationary period. Moreover, the order fully conformed with plaintiffs original prayers for relief. When plaintiff’s probationary period ended, the terms of the judgment against the Village of Oak Lawn were satisfied. Second, the order did not apply to the Police Commission or to the Pension Board; those bodies were not even parties to the original proceedings. Clearly, the order of March 23, 1967, was not a continuing order.

Plaintiff next argues that section 26 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 26) permits new parties to be added after judgment. A portion of section 26 does include the following provision:

“New parties may be added * * * by order of court, at any stage of the cause, before or after judgment, as the ends of justice may require and on terms which the court may fix.” (Emphasis added.)

This sentence which plaintiff relies on, does permit parties to be joined even after judgment, but it must be read in conjunction with the preceding sentence to this section, which states:

“No action shall be dismissed for misjoinder of parties, or dismissed for nonjoinder of necessary parties without first affording reasonable opportunity to add them as parties.” (Emphasis added.)
It, therefore, becomes apparent that this section does not apply to any parties being added, but only necessary parties. Nor was this provision intended as a means to re-open and extend judgments long after they have been satisfied; where the ends of justice require that parties be joined after judgment those parties must have been necessary parties to the original action with a direct interest in the subject matter of the law suit. Otherwise, there would be no finality in judgments.

Here, the new parties plaintiff seeks to join after judgment had no direct interest in the subject matter of the original mandamus proceeding. Plaintiff’s original mandamus action sought to require the Village of Oak Lawn to comply with a decision of the Oak Lawn Police and Fire Commission to hire him as a probationary police officer. When the March 23, 1967, order issued, plaintiff was hired as a probationary police officer; and when plaintiff’s probationary period ended, the judgment was satisfied. Now, years later, plaintiff seeks to join new parties in the same cause, but the relief he seeks from them does not relate to hiring or to his duties as a probationary police officer. The relief plaintiff seeks against the Police Commission and the Pension Board relates to his participation in the pension fund and to his eligibility for the sergeants’ examination. Clearly, these are matters separate and distinct from plaintiff’s original cause of action. Section 26 does not permit a party to change the nature of the original proceeding. Section 26 is inapplicable in the instant case.

Plaintiff finally argues that no injury resulted from proceeding in this manner since the Police Commission and Pension Board were served with process and the matter proceeded anew against them with all the safeguards of a new proceeding. However, plaintiff ignores the fact that the effect of his method of proceeding was to circumvent the Administrative Review Act. (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) As plaintiffs prayers for relief in his most recent petition indicate, he is seeking to become a pension fund member and to participate in pension fund elections and he is seeking to take a sergeants’ examination. The Pension Board and the Police Commission are authorized to make decisions regarding such matters and the statutes creating these boards clearly indicate that the Administrative Review Act is applicable. (Ill. Rev. Stat. 1971, ch. 24, par. 10 — 2.1—17; Ill. Rev. Stat. 1971, ch. 108:/2, par. 3 — 148.) The Administrative Review Act is intended to be the exclusive remedy in such situations. (Ill. Rev. Stat. 1971, ch. 110, par. 265.) Here, plaintiff’s recourse was under that Act.

We need not reach defendants’ other contentions. The judgment of the circuit court of Cook County is reversed.

Reversed.

SULLIVAN, P. J., and DRUCKER, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Daniel J. Wilhite, Defendant-Appellant.
    (No. 59424;
    First District (5th Division)
    October 11, 1974.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, Assistant, Public Defender, and Shelvin Singer, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, and James B. Davidson, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Hawkins, Defendant-Appellant.
    (No. 59896;
    First District (5th Division)
    October 11, 1974.

      James J. Doherty, Public Defender, of Chicago (Saul H. Brauner, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel, and Susan Vitullo Walters, Senior Law Student), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

After a bench trial defendant was found guilty of the armed robbery of Dorothy Mae Carter and was sentenced to a term of not less than 8 nor more than 16 years. On appeal his sole contention is that he was denied effective assistance of counsel.

On April 28, 1972, at approximately 8 P.M., complainant was robbed at gun point of her purse and radio by two men as she was walking near her home at 6517 South Harvard Avenue. The street lights which were on although it was not yet dark afforded her a view of defendant’s face for a couple of minutes. She reported the incident to the police that night.

On the evening of April 29, 1972, Chicago Police Investigators Paul Praski and Thomas Morley arrested defendant in connection with an unrelated robbery as he was walking with a companion in the vicinity of 65th Street and Harvard Avenue. Coincidentally, complainant was walking with her nephew on Harvard Avenue at the time of the arrest and recognized defendant. She did not approach the investigators, who were in civilian clothes, because she was unaware that they were police officers effectuating an arrest. She did, however, return home and called the police to report sighting her assailant.

Later that night she was taken to the police station where defendant was being held on the unrelated charge. She identified defendant in the lineup of six men.

Defendant testifying in his own behalf denied the charge of aimed robbery and offered an alibi. He further testified that complainant at first shook her head no at the lineup, but after conferring with the police officer present she made the identification.

OPINION

Defendant contends that he was denied his constitutional right to effective assistance of counsel and he cites as evidence of incompetency and lack of diligence his counsel’s failure to make a motion to quash the arrest, failure to object to the admission of the lineup photographs into evidence and failure to make pretrial motions for discovery and a list of witnesses. Defendant admits that he retained his counsel, but argues that a determination of adequate representation based on the distinction of whether counsel was court appointed or privately retained is a denial of equal protection of the law.

It is true that Illinois decisions have in the past reviewed a defendant’s claim of ineffective assistance of counsel by utilizing separate and distinct tests based on whether counsel was privately retained or court appointed. (People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810.) However, recently, and in our view properly, it has been held that the constitutional right to a fair trial may not be subject to such an artificial distinction; that while no test can be formulated which will, in advance of close scrutiny of the trial record, furnish a definitive checklist of what is needed to sustain a defendant’s assertion of ineffective assistance of counsel, the requisite standard is the same in both instances — the incompetency of trial counsel must not be of such character as to reduce the trial to a farce. See People v. Long, 12 Ill.App 3d 974, 298 N.E.2d 784; People v. Ortiz, 22 Ill.App.3d 788, 317 N.E.2d 763.

Turning to defendant’s particular claims, it is first argued that his counsel should have made a motion to quash the arrest since there was insufficient evidence to warrant it and no evidence of an arrest warrant. The record does not support this contention. The record indicates only that Investigators Praski and Morley were investigating a prior, unrelated robbery of an individual on the street and that they had been informed the previous day that an accusation had been made against defendant. Without evidence in the record to the contrary, it appears that there was probable cause for defendant’s arrest without a warrant. (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 2(c); People v. Wrona, 7 Ill.App.3d 1, 286 N.E.2d 370; People v. Taylor, 6 Ill.App.3d 343, 285 N.E.2d 489.) Under such circumstances, his subsequent detention for the armed robbery charge in the instant case was proper. (People v. Abrams, 15 Ill.2d 178, 154 N.E.2d 240; People v. Brown, 354 Ill. 480, 188 N.E. 529.) A motion to quash the arrest would therefore have been without merit.

The gist of defendant’s next argument is that his counsel was incompetent for failing to object to the in-court and out-of-court identification procedures. It is asserted that the lineup at the police station, as exhibited by a photograph introduced into evidence, was suggestive and therefore led to a constitutionally inadmissible identification under the Wade-Gilbert-Stovall doctrine.

The evidence in the record disputes this contention. The six participants in the lineup were all Negroes, and with one exception, approximately the same height, build and skin tone. All six individuals wore their hair short and three of those had mustaches. We find the composition of the lineup fundamentally fair.

Moreover, there is no violation of due process where the in-court identification has an origin independent of the pretrial lineup. (People v. Harris, 46 Ill.2d 395, 263 N.E.2d 35.) In the instant case, the complainant viewed defendant’s face in the light of a street lamp for a couple of minutes during the robbery. The following evening she recognized him as he stood on the street with the police investigators. Such observations provide an ample basis for the in-court identification, independent of the pretrial lineup.

Finally, it is argued that defense counsel’s failure to make pretrial motions for discovery and a list of witnesses evidence a lack of diligence. Defendant asserts that the lack of defense counsel’s preparation denied him effective assistance of counsel.

The record discloses that defendant’s attorney conducted a thorough cross-examination of the State’s witnesses and introduced testimony by defendant which if believed, would have required defendant’s acquittal. Defendant’s entire defense rested upon the credibility of his alibi testimony in comparison with complainant’s in-court identification of him as her assailant. For this reason, little significance can be placed on his attorney’s failure to file discovery motions. (People v. Horton, 117 Ill.App.2d 465, 254 N.E.2d 666.) Moreover, the indictment returned by the grand jury listed the State’s witnesses and the record does not reflect that their testimony at trial came as a surprise to defendant or his counsel. It cannot be said that defendant’s attorney was unprepared to the substantial prejudice of defendant. See People v. Travis, 10 Ill.App.3d 714, 295 N.E.2d 325.

We conclude that defendant was not denied his constitutional right to effective assistance of counsel and affirm the conviction.

Affirmed.

SULLIVAN, P. J., and BARRETT, J., concur.

       Following the entry of sentence in the instant case, defendant pled guilty to armed robbery in an unrelated indictment and was sentenced to 8 to 16 years to run concurrently with the sentence imposed here. The record does not make clear whether that charge and subsequent conviction related to this arrest.

        United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951; Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ison L. Graves, Defendant-Appellant.
    (No. 59961;
    First District (5th Division)
    October 11, 1974.

      James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Michael J. Polelle, and Bruce H. Weitzman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was convicted of the charge of unlawful use of a weapon in the City of Chicago in violation of section 24 — 1(a) (10) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 24 — 1(a) (10)) and was given a 1-year sentence.

On appeal, defendant does not dispute the commission of the act charged but challenges only the validity of the statute under which he was convicted. Specifically, he contends the statute is unconstitutional in that (1) it violates article IV, section 13, of the Illinois Constitution because it applies only to incorporated cities, villages and towns; and (2) having this limited application, it also violates the equal protection clause of the United States Constitution.

The State objects to the introduction at the appellate stage of these contentions. It argues that the constitutional avenue of attack has been waived by failure to preserve the point by timely objection in the trial court.

Opinion

I.

In support of its position that constitutional questions are improperly raised when first presented in the appellate court, the State invites our attention to two cases which it contends are controlling, People v. Reese, 14 Ill.App.3d 1049, 303 N.E.2d 814, and People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353. In Reese, this court stated at page 1055:

“Concerning the question of the constitutionality of the applicable statute, we have examined the entire record and find this issue was not raised in the trial court and is being raised here for the first time. Since this is the first point at which the constitutionality issue has been raised, we will not consider the question here.”

However, it is to be noted that this language is obiter dicta since the court proceeded to reverse the trial court’s decision on other grounds.

In Amerman, defendant was convicted of possessing a pistol without registering it as required by the provisions of the Firearm Owner’s Identification Act. Then, for the first time on appeal, he contended the Act was unconstitutional in that it deprived him of due process and equal protection rights. In dismissing his appeal, the court stated at page 197:

“We cannot entertain this appeal. The rule is familiar that a nonjurisdictional question which has not been properly presented in the trial court and preserved for review will- not be considered on appeal. [Citation.] This rule is, of course, applicable to constitutional questions. ‘It is fundamental that the question of the constitutionality of a statute cannot be properly raised for the first time in a court of review, but must have been presented to the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such ruling. [Citations.]’ ”

In his dissent in Amerman, Mr. Justice Goldenhersh examines the history of legal gyrations which produced the result determined by the majority. He then proceeds to state at page 200:

“The Code of Criminal Procedure of 1963 (Ill. Rev. Stat, ch. 38, par. 100 — 1 et seq.) enumerates the grounds upon which a pretrial motion to dismiss an indictment may be made (par. 114 — 1) and provides that all are waived by failure to file a motion except * * * 114 — 1(a)(8) which provide respectively:
# # #
‘(8) The charge does not state an offense.’
The Committee Comments (S.H.A. ch. 38, sec. 114 — 1, p. 123) state: ‘Subsection (a)(8) permits the motion to dismiss where the charge does not state an offense. In accordance with Article III, ‘charge’ refers to the complaint, indictment or information. Since á charge which does not state an offense does not give defendant a full notice of why he is being tried, and the charge will not sup-; port a judgment unless an offense is stated therein, due process would be violated and may be attacked at any time.’
# * * . '
Adverting to subsection (a)(8), and the Rule, it is difficult to perceive how a complaint, indictment or information can state an offense based upon an invalid statute, and it is equally difficult, to perceive a right more-‘substantial’ than the right not to be con-' victed of an offense charged under- an unconstitutional statute.”'

This same issue also arose in People v. Mirmelli, 130 Ill.App.2d 1, 264 N.E.2d 470, where this court stated at page 15:

“In his reply brief (for the first time), defendant seeks to have this court consider die constitutionality, of .the abortion statute under which he has been convicted, contending that the language of the statute is so vague and uncertain as to be violative of the due process clauses of the United States and Illinois Constitutions. This issue was not raised in the trial court and is therefore not proper for our consideration. As stated in People v. Luckey, 42 Ill.2d 115, 117, 245 N.E.2d 769, ‘The question of the constitutionality of a statute is properly preserved for review only when it has been raised in and passed upon by the trial court.’” (Emphasis added.)

Parenthetically, it should be noted that Luckey, cited above in Mirmelli, was one of the cases relied upon by the majority of the supreme court in Amerman. ' ■

On appeal, Mirmelli was consolidated with and docketed under the title People v. Frey, 54 Ill.2d 28, 294 N.E.2d 257. There the Illinois Supreme Court reversed Mirmelli holding the abortion statute unconstitutional. The court stated at page 32:

“The conviction of Dr. Mirmelli must therefore be reversed. The statute creating the offense is invalid and- a judgment entered thereon is erroneous and void.”

Thus, although not specifically stated, it would appear that Luckey and its descendant, Amerman, have been impliedly overruled, and that the reasoning in the dissent of Mr. Justice Goldenhersh in Amerman would now seem to prevail. It is to be noted, however, that this rule - applies' only where the constitutionality of the statute under which a defendant is convicted is being attacked. Conversely, where issues collateral to the validity of the statute are involved, failure to object at trial .waives those issues even though they arise out of. constitutional .violations.. Into this category falls People v. Eubank, 43 Ill.2d 383, 263 N.E.2d 869, cert. denied, 402 U.S. 972, cited by the State. There, defendant was convicted of armed robbery but sought on appeal for the first time to challenge the Alibi Statute, an issue collateral to the charge of armed robbery. It was thus properly held there that the point was waived by failure to raise it in the trial court.

Since defendant here challenges the constitutional validity of the statute under which he was convicted and sentenced, his objection is not waived by failure to present it at the trial court. Were the statute unconstitutional, it would be, as stated by the supreme court in Frey, “erroneous and void,” and, in this event, defendant would have been convicted of a charge which failed to state an offense. Supreme Court Rule 615 provides in part:

“Plain errors are defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.”

The right not to be convicted of an offense charged under an “erroneous and void” statute is such a “substantial right.” See Amerman, supra, at page 201.

II.

Having held the challenge to the validity of the statute was not waived, we turn now to the question of its constitutionality. The challenged statute states as follows:

“§ 24 — 1. Unlawful Use of Weapons.
(a) A person commits the offense of unlawful use of weapons when he knowingly:
e # s
(10) Carries or possesses in a vehicle or on or about his person within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver or other firearm.”

Regarding this statute, defendant first argues that it violates article IV, section 13, of the Illinois Constitution because it fails to provide protection for the unincorporated areas and thus constitutes “special” legislation favoring incorporated areas.

In Bridgewater v. Hotz, 51 Ill.2d 103, 281 N.E.2d 317, the supreme court stated at pages 111-112 with regard to section 13 of article IV of the 1970 Constitution:

"If there is a reasonable basis for the classification, and it bears a reasonable and proper relation to the purposes of the act and the evil it seeks to remedy, it does not violate the constitutional proscription of special or local laws. [Citations.] As the court said in People ex rel. Du Page County v. Smith [21 Ill.2d 572] at page 577: * * [I]t is well settled that an act is not local or special merely because of a legislative classification based upon population [citation], or territorial differences [citation]. Such classifications will be sustained where founded upon a rational difference of situation or condition existing in the objects upon which it rests, and where there is a reasonable basis for the classification in view of the objects and purposes to be accomplished. [Citations.]’” (Emphasis added.)

Thus, if the purpose is legitimate and the distinction rational, the statute will be upheld.

It seems obvious that the object and purpose of the statute in question here was to limit the availability of firearms in the more populated areas of the state. Pursuant to its police powers, the State has a valid interest in controlling crime within its borders, and we think that the limitations on the right to carry or possess guns fulfills a valid State purpose in controlling the incidence of their use in the commission of crimes.

Likewise, the distinction in the statute between incorporated and unincorporated areas appears to be a rational one. On the whole, incorporated areas, be they cities, villages or towns, are much more densely populated than unincorporated areas. Furthermore, there seems to be a rational distinction between tire crime rates in the more largely populated areas than in less populous areas. This distinction is generally expressed either in terms of distance from urban areas or in the difference in the crime rates of urban and rural areas.

These contrasts may be seen from the President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Crime and Its Impact — An Assessment (1967), where it is stated at page 140:

“Over time, one of the most consistent regularities found in crime statistics is the higher overall rate of crime in urban as compared with rural areas.”

In its synthesis at page 151, the report states:

"The most frequent finding is that crime rates in general, and property offense rates in particular decrease as distance from the center of urban areas increases. This is particularly the case when the center of the urban area is characterized by physical deterioration, high rates of economic dependency and poverty, transiency, minimal community organization, and a high degree of anomie, and high concentrations of depressed minority groups.”

In view thereof, we feel that the legislature’s expression here of the difference' in terms of “incorporated” as opposd to “unincorporated” areas was not arbitrary. Whether expressed as “rural-urban” or in terms of distance from urban areas or in terms of incorporated areas as opposed . to unincorporated areas, a distinction in crime rates does exist. The expression of this distinction is a matter for the legislature, and its classifications need not be logical, harmonious, scientific or even accurate ■provided they will accomplish the legislative design and are not arbitrary. , (People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 364, 291 N.E.2d 807; People ex rel. Vermilion County Conservation District v. Lenover, 43 Ill.2d 209, 251 N.E.2d 175.) Here, we believe that there is a “rational difference of situation” and a “reasonable basis for the classification in view of the objects and purposes to be accomplished,” as required rby .Bridgewater, supra. We reject defendant’s contention that the statute . was in violation of. article IV, section 13, of the Illinois Constitution.

III.

Defendant also challenges the statute under the equal protection clause of the United States Constitution. In this regard, it appears that the traditional standard of review under the equal protection clause requires only that the State’s classification have some rational relationship to legitimate State purposes unless (1) there is involved some “suspect classification,” e.g., race, national origin, alienage, indigency, or illegitimacy (San Antonio Independent School District v. Rodriguez (1973), 411 U.S. 1, 61); or (2) the statute impinges upon a fundamental constitutional right, e.g., freedom of the press, free speech, right to travel, etc. (Rodriguez, supra, at 61.) We note that neither exception' is involved here.

In determining whether there is a rational relation to legitimate State purposes, the rule appears well established that a statute will not be construed' as denying equal protection of the law unless the classifications ■ complained of are arbitrary and not based upon fa rational difference of * condition or situation in relation to the legislative purpose. People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 363, 291 N.E.2d 807; Stein v. Howlett, 52 Ill.2d 570, 289 N.E.2d 409.

Thus, itimay' he seen that the standards under the equal protection clause and those under article IV; section 13 of the Illinois Constitution are similar. Indeed,, absent the' "former’s special scrutiny where. suspect ..classifications-or infringements of fundamental• constitutional rights are involved, they are practically;.identical. (Compare. Bridgewater, supra, with Rodriguez, supra, and McMackin, supra.) As stated by Mr. Justice Stewart, in his concurring opinion in Rodriguez, at page 60:

“[T]he basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and ob-. jectively identifiable classes.”

Consequently, we are of the opinion that if a State statute does not violate the special legislation prohibition and the exceptions found in Rodriguez are not present, i.e., neither a suspect class is involved nor a' fundamental right infringed, the statute will not, ipso facto, violate the equal protection clause.

In the instant case, we have found the statute does not violate the special legislation prohibition, and because the Rodriguez exceptions are absent, we hold that the statute also satisfies the equal protection requirements.

The statute being valid, the conviction thereunder must be affirmed.

Affirmed.

BARRETT and LORENZ, JJ., concur.

       “The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination."


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Birdella Smith, Defendant-Appellant.
    (No. 59964;
    First District (5th Division)
    October 11, 1974.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE LEIGHTON

text:
    Western Pride Builders, Inc., Plaintiff-Appellant, v. Helen Zicha, Defendant-Appellee.
    (No. 58255;
    First District (2nd Division)
    October 15, 1974.

      Barry B. Nekritz, Dean A. Dickie, and Thomas M. Harris, all of Chicago (Aaron, Aaron, Schimberg & Hess, of counsel), for appellant.
    Frank J. Toman, of Berwyn, for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

Western Pride Builders, Inc., the plaintiff, a licensed real estate broker, appeals from a judgment entered in a suit it filed against Helen Zicha. The complaint alleged that, at her request, plaintiff procured a ready, willing and able buyer who, at a price of $47,500, purchased a building owned by defendant; and that, as a result, she owed the plaintiff a real estate brokerage commission of $2,850. After a trial without a jury, the court ruled in defendant’s favor, with costs. The issue in this appeal is whether the trial court erred in finding that plaintiff was not the procuring cause in the sale of the building and in concluding that plaintiff could not recover a real estate brokerage commission from defendant.

On June 1, 1964, defendant purchased a building situated at 5855 West 35th Street in Cicero, Illinois. Victor and Virginia Conforti were in possession of the property as leasehold tenants. A month or so later, defendant decided to sell. She tried to interest the Confortis; and for a period of more than 6 years, she discussed sale of the property with them. However, the Confortis never made an acceptable offer.

Early in December 1970, defendant placed the building with the plaintiff on an open listing. There was no restriction with regard to dealings with tenants of the building. Therefore, a few days later, plaintiff communicated with the Confortis; and as a resült, they made an offer of $45,000. Defendant was advised; and thereafter, she met two officials of the firm in their brokerage offices, where she told them that she would bé willing to accept the sum of $47,000 if from that amount she received a net of $45,000. Following this meeting, plaintiff continued negotiations with the Confortis and obtained from them a signed contract in which they agreed to buy defendant’s building for $47,000. The contract was sent to defendant; and about 7 days later, when plaintiff’s president called to ascertain her decision concerning it, defendant said she had sent the matter to her attorney and was waiting to see what he was going to do. Later, when plaintiff did not receive any communication from defendant, its president called her arid she referred him to the lawyer. When the lawyer was contacted, he said that defendant’s building was being handled on an exclusive listing by his son, who was a real estate broker. On April 19, 1971, the Confortis, with the lawyer’s son as- the broker, signed a contract by which they agreed to buy defendant’s building for $47,500. The transaction was closed on June 1, 1971.

After learning of this fact, plaintiff filed its complaint. Defendant answered and admitted plaintiff obtained from the Confortis an offer to purchase her building; and that on a real estate sale of $47,500, the broker’s commission was $2,850. Then, after discovery proceedings Were completed, the case went to trial without a jury. The court heard evidence-from which it found that the Confortis were tenants with whom defendant had negotiated for the sale of the building before plaintiff got them to make an offer; and that after the contract was signed, plain,tiff, although claiming it was the real estate broker, did nothing to complete the sale. Therefore, the court found the plaintiff firm was not the procuring cause of the sale and concluded that it was not entitled to receive a real estate brokerage commission from defendant for the purchase of her building by the Confortis.

■ The evidence in this record proved that early in December 1970, defendant listed her building with the plaintiff and gave it the authority to procure an acceptable, ready, willing and able purchaser. On December 12, after some discussion with defendant, plaintiff obtained a $47,000 offer from the Confortis. According to Virginia Conforti, she and her husband made the offer by a contract which they signed with intent to purchase defendant’s building. When defendant testified, first as an adverse witness and later on her behalf, she did not giye positive testimony concerning the $47,QOO offer. She. answered three questions in the negative,"saying, “I don’t, recall,” “I don’t have-it” and “I have not seen it.” In contrast, plaintiff’s president testified positively, that-after receiving the .Conforti .contract, he. sent, the original ;to defendant; and-later, in conversation with her, she told him she sent it to her lawyer and was waiting his response.

As a rule of evidence, it is said that negative testimony does not raise an issue of fact. (See Chicago & Alton R.R. Co. v. Gretzner, 46 Ill. 75; Robertson v. New York Central R.R. Co., 388 Ill. 580, 58 N.E.2d 527.) In this case, defendant’s testimony was negative. At best, it amounted to saying that she could not remember seeing or receiving the $47,000 offer. Her testimony, contradicted by a copy of the contract and by the positive testimony of the firm’s president, did not refute plaintiff’s claim that the $47,000 offer was sent to her; that she received it; and that she considered it and sent it to her lawyer. (See Gates Rubber Co. v. USM Corp. (S.D. Ill. 1972), 351 F.Supp. 329.) Therefore, plaintiff proved that on or about December 12, 1970, defendant placed with it her real estate in order that plaintiff could find a ready, willing and able purchaser; that plaintiff found one; and that while negotiations were in progress from its efforts, an offer from the Confortis was sent to defendant. The offer was not rejected; plaintiff’s agency was not terminated; and consideration of the offer was undertaken by defendant.

The law governing the relation between an owner of real estate and a broker is well settled. An owner cannot, in the midst of negotiations, withdraw the agency and thereby deprive the broker of his commission. (Gleason v. McKay, 37 Ill.App. 464; Day v. Porter, 60 Ill.App. 386, affirmed, 161 Ill. 235, 43 N.E. 1073; Finkelstein v. Spurck, 115 Ill.App. 521; see 12 C.J.S. Brokers § 85a (1938).) A real estate broker who by the terms of his employment brings an able and willing purchaser to the owner cannot be deprived of his commission simply because the owner completes the transaction himself, or through another broker, even though the sale is under different terms. (Vancil v. Walter, 323 Ill.App. 291, 55 N.E.2d 305.) Of course, to establish his right to a commission, the broker must prove he procured a prospective purchaser who was ready, willing and able to buy at the price fixed. (Greenwald v. Marcus, 3 Ill.App.2d 495, 499, 123 N.E.2d 139.) But if the owner approves of or enters into a contract with the purchaser, the readiness, willingness and ability of the latter is no longer open to question and the broker’s right to compensation accrues whether or not the sale is completed. (Bernard Klibanow & Company, Inc. v. Shafer, 2 Ill.App.3d 392, 276 N.E.2d 446.) On the other hand, if the owner claims the broker abandoned the negotiations, the evidence must show not only a discontinuance of his efforts by the broker, it must show abandonment by the purchaser of all intention to buy the property. Homann v. Wilson, 87 Ill.App.2d 180, 230 N.E. 2d 486 (abstract opinion); compare Mammen v. Snodgrass, 13 Ill.App. 2d 538, 142 N.E.2d 791.

In the case before us, there was no evidence that defendant’s prior negotiations with the Confortis were the cause of their decision to purchase the building in question. It was plaintiff, in its employment as defendant’s broker, who procured their offer and who procured them as able and willing purchasers of defendant’s real estate. Nor was there any evidence that plaintiff abandoned its efforts as defendant’s real estate broker. Certainly, as Virginia Conforti’s testimony proved, the purchasers procured by the plaintiff never abandoned their intention to buy the building in question. Defendant never rejected the offer from the Confortis which plaintiff sent to her; she did not terminate plaintiff’s agency. As we said recently, “[a] broker’s right to a commission depends on whether the sale was procured or effected through his efforts or through information derived from him, and cannot be defeated by the owner’s making the sale himself or through another broker.” Van C. Argiris Co. v. Caine Steel Co., 20 Ill.App.3d 315, 314 N.E.2d 361.

Therefore, we are of opinion that the trial court - erred when it found that plaintiff was not the procuring cause in the sale of defendant’s building to the Confortis and in concluding that it was not entitled to a real estate brokerage commission. Accordingly, the judgment of the trial court is reversed; and there being no dispute between the parties concerning the amount of the commission due from the sale, judgment of this court is entered in favor of plaintiff in the sum of $2,850, with costs in the trial court and in this appeal.

Reversed; and judgment entered in this court in favor of plaintiff.

HAYES, P. J., and STAMOS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ricky Davis, Defendant-Appellant.
    (No. 59689;
    First District (2nd Division)
    October 15, 1974.
    James J. Doherty, Public Defender, of Chicago (Anthony Pinelli, Assistant Public Defender, of counsel), for appellant.
    -Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.