author: JUSTICE COCCIA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. IRVING KOLICHMAN, Defendant-Appellant.
    First District (2nd Division)
    No. 1-88-1227
    Opinion filed July 30, 1991.
    Rehearing denied October 3, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Robert F. Heilingoetter, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COCCIA

delivered the opinion of the court:

A jury convicted defendant, Irving Kolichman, of illegally possessing 18 tablets of diazepam (Valium) and 38 capsules of secobarbital (Seconal). (Ill. Rev. Stat. 1989, ch. 56V2, pars. 1206(e)(2), 1210(c)(8), 1402(b).) The jury acquitted defendant of the original, higher, charge of possession with intent to deliver. (Ill. Rev. Stat. 1989, ch. S&k, pars. 1401(d), 1401(f).) The court sentenced defendant to two years in the Illinois Department of Corrections. On appeal, defendant challenges the trial court’s denial of his motion to suppress evidence, claiming the search and seizure were illegal.

On December 4, 1986, Chicago police officer Philip Nelson and his partner were on patrol plainclothed and in an unmarked car. The two officers were assigned to the “Tactical Unit” and their duties included “drug investigations, follow-up investigations on drugs.” At 12:40 p.m. Officer Nelson received a radio call concerning an alleged robbery in progress at a 7-Eleven Store located in Chicago.

When Nelson and his partner, Whiteman, arrived at the 7-Eleven Store, a uniformed officer, Richard Holmes, was already present in the store. Three men, including defendant, stood in the back of the store. The store manager reported that no robbery had occurred but he “thought they were going to rob him.” At the hearing, when asked if defendant and his two companions had committed any crime at that point, Officer Nelson testified, “They were standing in the store incoherent, unsure of their actions, staggering around ***, [bjringing suspicion upon them.” They were “acting in a suspicious manner.” When asked what crime he observed, Nelson replied: “Other than the fact that their actions, and manners, and they were carrying on, none.”

Officer Nelson described defendant as “standing with the help of leaning on the counter that was nearby”; his face was “very flush”; “he had drool coming from his mouth”; he responded to Nelson’s questions but he was incoherent — Nelson could not understand what defendant was saying. The other two men, Hiller and Blomgren, were acting similarly. (Charges against Hiller and Blomgren were later nol-prossed.)

The three officers simultaneously patted down the three men. Officer Nelson’s search of defendant produced the 56 pills which are the subject of this appeal. Officer Nelson testified, without elaboration, that he had encountered defendant on two or three prior occasions in his capacity as a Chicago police officer.

One of the other officers found a full pad of blank prescriptions in Hiller’s pocket. Also found on Hiller were two prescription vials, labeled for a “Steve Kaplan,” of diazepam and secobarbital. (This testimony was excluded from the suppression hearing on defendant’s objection; however, it was admitted into evidence at trial.)

Nelson testified regarding the purpose of the search:

“Q. Officer, what was the purpose of the pat down search you made of [defendant]?
A. Protective, custody. We were within his reach, and for our own protection.
Q. You were looking for a weapon?
A. No.
Q. You found a weapon?
A. No.
Q. And you continued to search?
A. After we found the prescription pads, yes.
Q. But that couldn’t have been a weapon, could it?
A. Not until we pulled it out and found out what it was.
Q. You didn’t arrest [defendant] for disorderly conduct, did you?
A. No, we did not.”

Defense counsel argued that the officer had the right to make a pat-down protective search but: “Once he does not feel a weapon, he has no right to go any further. That is the whole point. The fact that this officer knew [defendant] professionally in the past is meaningless.” The court disagreed:

“THE COURT: Counsel, I think you are writing some new law that I have not heard of. We have a situation where a defendant is in a place drooling, incoherent, leaning on a wall, and you feel that all the officer can do at that point is ask him to leave. He has violated the law then and there. He is either drunk or incoherent.
DEFENSE COUNSEL: He could be ill.
THE COURT: At that point, we are talking about probable cause.
DEFENSE COUNSEL: If the officer said to him leave, and he didn’t—
THE COURT: The officer is not required to say leave. He is in that condition. The officer has reason at that point to investigate further. He begins a search, whether it be for a weapon or whatever. He finds — inadvertently finds the drug. Now, you are saying no, that is improper. I don’t agree with you, counsel.”

The court denied the motion to suppress.

At trial, the owner of the 7-Eleven Store, Peter Haleas, testified that he and his wife were alone in the store when three men staggered in. He testified that he did not call the police and did not know who did. The officers who testified at the suppression hearing testified similarly at trial.

The officers testified to finding blue-colored tablets and reddish-orange-colored capsules loose in Blomgren’s pockets, and in two prescription-labeled vials in Hiller’s pockets, along with the blank prescription pad. These items were introduced into evidence over defendant’s relevancy objection.

A police chemist identified the 56 tablets and capsules possessed by defendant as diazepam (Valium) and secobarbital (Seconal). The parties stipulated that a police chemist would testify that the tablets and capsules found on Hiller and Blomgren were identical in shape, size, color and markings to those found on defendant. Also, an officer testified that the prescription vials found on Hiller were for 90 diazepam and 90 secobarbital. Both vials were labeled from Field and Professional Pharmacy, Inc., with the name “G. Urban” as the pharmacist, the name “Steve Kaplan” as the patient, and “Dr. Ragab” as the doctor. The date on the vials was December 4,1986.

George Urban, a pharmacist at Field Pharmacy, testified that on December 2, 1986, he received a telephone order from someone identifying himself as Dr. Ragab, who asked him to fill a prescription for 90 Valium for Steve Kaplan. On December 4, 1986, a person identifying himself as Steve Kaplan came to the pharmacy in the late morning and gave Urban an additional prescription for 90 secobarbital on a prescription blank from Dr. Elizabeth Sosinski but signed by Dr. Ra-gab. Urban attempted to verify the second prescription by telephoning Dr. Ragab using the phone number on the prescription; a female voice told him Ragab was unavailable. Urban verified Ragab’s DEA drug dispensing number with the woman and was also told that Dr. Sosinski and Dr. Ragab were colleagues sharing the same office. Urban filled the two prescriptions. Urban testified that the person claiming to be Steve Kaplan was not defendant.

Dr. Ragab testified that he had never had a patient named Steve Kaplan and had never prescribed diazepam or secobarbital for such a patient. He had treated Gary Hiller in October 1985, over a year before, by removing stitches from Hiller’s head, but he did not give Hiller diazepam or secobarbital or any other medication. Dr. Ragab testified that the signature at the bottom of the prescription for Steve Kaplan presented to the Field Pharmacy was not his. Dr. Ragab had never heard of Dr. Sosinski and never shared an office with her.

Defendant testified that his father died in August 1985, and that he had received a prescription prior to that from a Dr. Auerbach for diazepam and secobarbital, which he refilled in October and again in December of 1985. Duplicate pharmacy receipts were introduced into evidence from Walgreen’s pharmacy as defendant’s exhibits Nos. 1, 2, and 10. Defendant testified that the tablets and capsules taken from him at his arrest came from the unused portion of the lawful prescriptions from Dr. Auerbach.

On rebuttal, the State called Darryl Natarus, a Walgreen’s pharmacist, who testified that he had filled a prescription in December 1985, consistent with the duplicate receipt in defendant’s exhibit one. Natarus testified that the prescription was for diazepam, manufactured by Mylan Co. Natarus described Mylan diazepam as light green in color, with the word “Mylan” marked on the tablet as well as the number 477. Natarus described the diazepam in People’s exhibit No. IF, which were light blue and marked “z 3927,” as a Zenith brand diazepam, not Mylan.

Natarus also examined People’s exhibit No. 11 and identified it as defendant’s prescription for Seconal capsules filled in June 1985. Na-tarus testified that Walgreen’s fills Seconal (secobarbital) prescriptions with Lilly brand drugs, which have the word “Lilly” on the capsule with a three-digit code number. After examining the seconal capsules found on defendant and contained in People’s exhibit No. 11, Natarus testified that they were not Lilly brand Seconal and did not come from Walgreen’s pharmacy.

On a motion to suppress evidence, the burden of proof is on the defendant to establish that the search and seizure were unreasonable. Once the defendant makes a prima facie showing that the search is unlawful, the burden shifts to the State to plead and prove a justification for the search. (People v. Clark (1977), 55 Ill. App. 3d 379, 370 N.E.2d 1111.) A reviewing court will not reverse the trial court’s finding on a motion to suppress evidence unless the finding is manifestly erroneous. People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899; People v. Harris (1990), 199 Ill. App. 3d 1008, 1012, 557 N.E.2d 1277, 1279.

Defendant initially argues that Officer Nelson’s search, which produced the 56 tablets and capsules, was unconstitutional. Specifically, defendant contends that Officer Nelson conducted a protective search that was either not justified at its inception or, at least, exceeded the permissible scope of a mere pat down of his outer clothing to feel for weapons.

The State claims that the search could have been justified as incident to defendant’s arrest for disorderly conduct, an ordinance violation. (Chicago Municipal Code §193 — 1(g) (1939), as amended, now section 8 — 4—010(g).) The State argues that, while the officer did not actually arrest defendant for violation of the disorderly conduct ordinance, he could have done so because there was probable cause to arrest.

Defendant contends that this alternative argument has been waived because it is raised for the first time on appeal. We conclude that the argument is not waived because, although it was not pressed below, the search incident to arrest theory was the basis for the trial court’s ruling admitting the evidence at trial. Moreover, when the State has prevailed at the motion to suppress, on appeal the State, as appellee, may defend the judgment below on any grounds sustained in the record regardless of the reasoning used by the trial court. People v. Bolden (1987), 152 Ill. App. 3d 631, 636, 504 N.E.2d 835, 839-40.

Section 193 — 1 of the Municipal Code of Chicago (1939), as amended, now section 8 — 4—010(g), which prohibits disorderly conduct, states:

“193 — 1. A person commits disorderly conduct when he knowingly:
(g) Appears in any public place manifestly under the influence of alcohol, narcotics or other drug, not therapeutically administered, to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity;
A person convicted of disorderly conduct shall be fined not less than $5.00 nor more than $500.00 for each offense.” (Amend. Coun. J. 5-24-51, at 312. New section passed Coun. J. 3-26-68, at 2561.)”

The power of a police officer to arrest is also provided under the Municipal Code of Chicago, section 11 — 25 (1939), as amended (now section 2 — 84—230):

“The members of the police department shall have power (1) to arrest or cause to be arrested, with or without process, all persons who break the peace, or are found violating any municipal ordinance or any criminal law of the State; (2) to commit arrested persons for examination; (3) if necessary, to detain arrested persons in custody overnight or Sunday in any safe place, or until they can be brought before the proper court; and (4) to exercise all other powers as conservators of the peace as are provided in this code.”

The foregoing ordinance provides ample authority for the Chicago police officer here to make a custodial arrest of defendant for an ordinance violation committed in his presence. Officer Nelson observed defendant staggering and drooling and holding onto a store counter for support. Defendant’s face was flush. When Nelson tried to question defendant, he could not obtain a coherent answer. The officer had probable cause to arrest defendant and his companions for violating the disorderly conduct ordinance. People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.

It is true that the officer did not assert, in his suppression hearing testimony, that he intended to arrest defendant for disorderly conduct. However, an objective standard governs the question of probable cause. The United States Supreme Court has said:

“[TJhe fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” Scott v. United States (1978), 436 U.S. 128, 138, 56 L. Ed. 2d 168, 178, 98 S. Ct. 1717, 1723.

See also Horton v. California (1990), 496 U.S. 128, 138, 110 L. Ed. 2d 112, 124, 110 S. Ct. 2301, 2308-09.

A search incident to arrest is a reasonable intrusion under the fourth amendment. (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034.) Of course, a search cannot be justified as being incident to a later arrest if the arrest, in turn, is justified only by the fruits of the earlier search. (Sibron v. New York (1968), 392 U.S. 40, 62-63, 67, 20 L. Ed. 2d 917, 934-35, 937, 88 S. Ct. 1889, 1902-03, 1905; see also Smith v. Ohio (1990), 494 U.S. 541, 108 L. Ed. 2d 464, 110 S. Ct. 1288.) However, it is well established that a search may be made immediately prior to the arrest and need not take place subsequent to it. Rawlings v. Kentucky (1980), 448 U.S. 98, 110-11 & n.6, 65 L. Ed. 2d 633, 645-46 & n.6, 100 S. Ct. 2556, 2564 & n.6; Sibron v. New York (1968), 392 U.S. 40, 77, 20 L. Ed. 2d 917, 943, 88 S. Ct. 1889, 1909 (Harlan, J., concurring); United States v. Hernandez (5th Cir. 1987), 825 F.2d 846, 851-52; United States v. Jaramillo (N.D. Ill. 1989), 714 F. Supp. 323, 333, aff’d (7th Cir. 1989), 891 F.2d 620, 627; People v. Rossi (1981), 102 Ill. App. 3d 1069, 430 N.E.2d 233.

The reason that the search may precede the arrest is that an innocent individual is saved from an unnecessary formal arrest where, with probable cause to arrest, the officer searches first. In People v. Simon (1955), 45 Cal. 2d 645, 648, 290 P.2d 531, 533, the California Supreme Court said:

“Thus, if the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested ***, there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest. In fact, if the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested. On the other hand, if he is not innocent or the search does not establish his innocence, the security of his person, house, papers, or effects suffers no more from a search preceding his arrest than it would from the same search following it.”

Our court followed this rule in People v. Rossi, 102 Ill. App. 3d 1069, 430 N.E.2d 233, where the defendant was prosecuted for a quantity of phencyclidine, POP, recovered in a search of his wallet. The trial court suppressed the evidence.

Rossi was a passenger in his car, which was being driven by a friend. A police officer pulled the pair over for a defective taillight. When Rossi just looked at the officer in response to an inquiry as to his knowledge about the taillight, and after the officer noticed an open beer bottle in the back seat, passenger side, he asked Rossi and the driver to step out of the car. Rossi swayed when he walked, and he mumbled incoherently when asked if he had a driver’s license.

During a search of the car a “roach” and a hunting knife were found in the car. Rossi and the driver were then searched. Rossi again mumbled incoherently when asked his name and identity. Rossi was advised that his wallet would be taken and inspected. The officers found PCP in the wallet and arrested Rossi for possession of a controlled substance.

One of the officers later testified that his purpose in searching the wallet was to obtain identification pursuant to taking Rossi into custody and that he was possibly going to write a citation for open liquor in an automobile. The other officer testified that at the time they searched the wallet, he was considering making an arrest for the transportation of open liquor and for the unlawful use of weapons.

The court in Rossi held that it appeared Rossi was in custody and would have been advised of his arrest but for the discovery of the PCP. The court also held that the search of Rossi’s person and wallet was validly made pursuant to the existence of probable cause to arrest, even though he was arrested for a different offense. The court stated:

“[T]he fact that the arrest of defendant did not take place before the search and was not for the original offenses does not vitiate the existence of probable cause for the search incident to arrest.” (102 Ill. App. 3d at 1073, 430 N.E.2d at 236.)

We think People v. Rossi reached the correct result and applies to the case at bar. See also United States v. Gay (10th Cir. 1985), 774 F.2d 368.

We note that other jurisdictions have found probable cause to arrest supports a valid search when faced with similar facts, i.e., where probable cause to make an arrest for disorderly conduct exists, a search preceding any arrest reveals other contraband, and defendant is charged only with possession of the contraband and not charged with disorderly conduct. A defendant need not be subsequently charged with or convicted of the offense that gave the police probable cause to arrest. See, e.g., United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 (defendant convicted of narcotics offense arising from search incident to arrest for driving under revoked license); State v. McDaniel (1925), 115 Or. 234, 237 P. 373 (defendant convicted of possession of intoxicating liquor arising from search incident to being intoxicated in public place in presence of officers, even though defendant was not later held to answer for offense of public intoxication; court held it was only relevant that defendant was guilty of committing a crime, in the presence of the officers, for which he could have been arrested); Springer v. State (1904), 121 Ga. 155, 48 S.E. 907 (defendant convicted of carrying a concealed weapon arising from search incident to arrest for being drunk and disorderly, even though defendant was not arrested for being drunk; the fact that the policeman testified that defendant was drunk and disorderly establishes that the officer would have been justified in making such an arrest); State v. Kaplan (1989), 20 Conn. App. 183, 565 A.2d 11 (defendant convicted of possession of cocaine arising from search incident to possession of prescription vial which was not in defendant’s name and did not contain correct pills; it is of no moment that defendant was not charged with possession of fraudulent prescription); People v. Sirak (1969), 2 Cal. App. 3d 608, 82 Cal. Rptr. 716 (defendant convicted of possession of marijuana arising from search incident to driving under the influence of alcohol; court held that even if officer had not decided to arrest defendant, the facts established that he then possessed sufficient information to furnish reasonable cause to arrest); People v. Benedict (1969), 2 Cal. App. 3d 400, 82 Cal. Rptr. 759 (conviction upheld, where arrest made after “search” of defendant’s arms revealing puncture wounds; search incident to being under the influence of drugs after officer noted defendant’s thick, slurred speech, difficulty moving, constricted pupils); People v. Gregg (1968), 267 Cal. App. 2d 567, 73 Cal. Rptr. 362 (defendant convicted of possession of heroin arising from search incident to being under influence of narcotics where officer observed defendant in dazed condition, extremely nervous, with contracted pupils); People v. Holze (1977), 55 Ill. App. 3d 155, 370 N.E.2d 1171 (defendant convicted of possession of controlled substances arising from search incident to driving under influence where the officer observed defendant driving erratically, glassy eyes, odor of alcohol, swaying when he walked; officer did not need to inform defendant he was under arrest before searching him); People v. Jones (1962), 17 A.D.2d 616, 232 N.Y.S.2d 18 (defendant convicted of possession of narcotics arising from search incident to arrest for disorderly conduct, even though disorderly conduct charge was dropped); State v. Charles Somers (Ohio App. 1st Dist., Mar. 3, 1981), No. C-800179 (defendant convicted of possession of cocaine arising from search incident to public intoxication or disorderly conduct; court held that from the information known to the officer there was an independent source of probable cause to support the search).

We are sensitive to the need to maintain “procedural rules that allow effective police activity while preventing situations *** in which the police search an individual, with less than probable cause, for the purpose of discovering evidence which will thereafter form the basis for the arrest.” (United States v. Chatman (9th Cir.1977), 573 F.2d 565, 568, 571 (Takasugi, J., dissenting).) We do not seek to permit the police to “search any citizen without a warrant or probable cause so long as an arrest immediately follows.” (Smith v. Ohio, 494 U.S. at 543, 108 L. Ed. 2d at 468, 110 S. Ct. at 1290.) Indeed, we abhor that result. However, we cannot conclude, on the present facts, that Officer Nelson was unauthorized to arrest defendant when defendant was obviously violating the disorderly conduct ordinance within a store. Defendant and his companions frightened the storekeeper, and defendant appeared to be so much under the influence of intoxicants or drugs that he might endanger himself or others or the store property. The officer was aware of defendant’s condition and could have arrested him and taken him to the station house. A full search of defendant’s person incident to such custodial arrest is completely justified under the law. We can find no abuse of discretion on behalf of the trial court in upholding the instant search as incident to probable cause to arrest for disorderly conduct, as the trial court evidently concluded. We therefore affirm the judgment denying defendant’s motion to suppress the evidence seized from defendant.

Defendant next contends that the jury instructions on possession of a controlled substance used at his trial were fundamentally unfair because they failed to define the term “unlawfully possessed.”

At trial, defendant admitted possessing the capsules and tablets in question but testified that he lawfully possessed them pursuant to a valid prescription.

Defendant was convicted of two counts of the lesser included offense of possession of a controlled substance, a Class 4 felony under section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56V2, par. 1402(b)). Section 402 provides that it is unlawful for a person to knowingly possess a controlled substance “[e]xcept as otherwise authorized by this Act.” (Ill. Rev. Stat. 1985, ch. 56x/2, par. 1402.) A person who has a valid prescription from a licensed practitioner legally may possess a controlled substance. Ill. Rev. Stat. 1985, ch. 56V2, par. 1302(c)(3).

Three instructions given to defendant’s jury are relevant. The jury was instructed:

“A person commits the offense of possession of a controlled substance when he knowingly and unlawfully possesses a controlled substance.” (Emphasis added.) (People’s Instruction No. 11.)

Defendant’s jury was further instructed: The instructions given were modified versions of Illinois Pattern Jury Instructions, Criminal, Nos. 17.12 and 17.13 (2d ed. 1981). Those instructions do not include the term “unlawfully.”

“To sustain the charge of possession of a controlled substance, the State must prove the following propositions: That the defendant knowingly and unlawfully possessed [name of drug], a controlled substance.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis added.) (People’s Instructions Nos. 12,13.)

Defendant complains that the jury, lacking a definition of the term “unlawfully possesses,” would not have known that possession of a controlled substance pursuant to a lawful prescription is not a crime. Thus, the jury might have convicted him for using the substances despite the existence of a prescription.

Initially, we disagree that the term “lawfully possesses” constitutes an element of the crime of possession of a controlled substance. Possession of a controlled substance pursuant to a valid prescription issued by a practitioner as defined under the Act is an exemption under section 506 (Ill. Rev. Stat. 1985, ch. 56x/2, par. 1506), which requires the defendant to advance evidence that he comes within the exemption. Section 506 provides:

“It is not necessary for the State to negate any exemption or exception in this Act in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this Act. The burden of proof of any exemption or exception is upon the person claiming it.” (Ill. Rev. Stat. 1985, ch. 56V2, par. 1506.)

When a defendant produces evidence which brings him within the exemption, the State then bears the burden of disproving the exemption beyond a reasonable doubt. (People v. Biers (1976), 41 Ill. App. 3d 576, 582, 353 N.E.2d 389, 394; see also People v. Williams (1962), 23 Ill. 2d 549, 554-56, 179 N.E.2d 639, 643 (court interpreted a similar provision of the Uniform Narcotic Drug Act as requiring the State to assume the ultimate burden of persuasion once the defendant introduced evidence supporting an exemption to justify his possession of narcotics).) We hold, therefore, that the Controlled Substances Act’s provision placing the burden on the defendant to produce evidence of a statutory exemption is tantamount to an affirmative defense. Just as a defendant cannot complain if the court’s instructions provide him greater protection than the law requires (see People v. Upton (1987), 151 Ill. App. 3d 1075, 503 N.E.2d 1102 (instructions placed greater burden on State than required by law)), a defendant cannot complain that the instructions stated an exemption or affirmative defense as if it were an element. No error occurred.

Next, defendant contends that even if the exemption for possession pursuant to a lawful prescription is not an element but is treated like an affirmative defense, the jury instructions used at his trial confused the jury as to the burden of proof similarly to the murder-manslaughter instructions condemned in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. We disagree.

Nothing remotely similar to the error in People v. Reddick occurred in the case at bar. Indeed, the instructions given, People’s Nos. 12 and 13, informed the jury that it was the State’s burden to prove that defendant’s possession of the controlled substances was unlawful. Other instructions informed the jury that the State must carry its burden of proof by the beyond the reasonable doubt standard. In People v. Reddick, it was not merely the confusing nature of the instructions which required a new trial, but the fact that the jury was at no time apprised of the correct burden of proof. (123 Ill. 2d at 198-99, 526 N.E.2d at 147.) As defendant’s jury was apprised that the State had the burden of proof beyond a reasonable doubt as to the unlawfulness of defendant’s possession, we conclude that defendant’s claim of “Reddick error” lacks merit.

Finally, defendant argues that the lack of a definition of “unlawfully possesses” renders the instructions so vague as to leave the jury without ascertainable standards to guide it in applying the law. Defendant waived this claim of error by not tendering his own instructions remedying that alleged defect. People v. Carlson (1980), 79 Ill. 2d 564, 584, 404 N.E.2d 233, 241-42; People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513.

Moreover, there was ample evidence offered in rebuttal by the State to undermine defendant’s claim of lawful possession. Thus, we do not see this case as being so closely balanced that defendant’s waiver of the claim of instructional error is excused. Nor do we see any substantial defect in the use of the term “unlawfully possesses” in the instructions such that fairness requires us to review the claim of instructional error.

Defendant lastly argues that the trial court erred in allowing the testimony of the pharmacist and the doctor to be introduced at trial. He complains that their testimony was not relevant. Also not relevant, he claims, was the blank prescription pad and two vials, one containing Valium and the other Seconal, found on the co-arrestee Hiller, or the Valium and Seconal found loose in co-arrestee Blom-gren’s pockets. Defendant first raised this claim in a motion in limine and has preserved it by subsequent objection and motion for new trial.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (People v. Johnson (1986), 114 Ill. 2d 170, 193, 499 N.E.2d 1355, 1365; People v. Monroe (1977), 66 Ill. 2d 317, 322, 362 N.E.2d 295, 297.) The determination of what is relevant is within the sound discretion of the trial court, and its discretion will not be disturbed on review unless it clearly appears that it has abused its discretion. People v. Johnson, 114 Ill. 2d at 193, 499 N.E.2d at 1365; People v. Franklin (1981), 93 Ill. App. 3d 986, 418 N.E.2d 155.

In his opening statement, made before the beginning of the State’s case, defendant outlined his defense that he had a prescription for the Valium and Seconal that he possessed and that there was no evidence that the drugs he possessed came from the vials found on Hiller. Once defendant asserted in his opening statement that he was authorized by prescription to possess the drugs, the source of the drugs became an issue of consequence in the trial. Therefore, the State could properly introduce evidence of an alternative source of the drugs. In addition, we note that defendant was not convicted of possession with intent to deliver, as charged originally. We hold that he was not prejudiced by the introduction of evidence that the prescriptions were fraudulent.

Judgment affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN CASE, Defendant-Appellant.
    First District (2nd Division)
    No. 1-88-2818
    Opinion filed July 30, 1991.
    Rehearing denied September 16, 1991.

      Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Steven M. Mondry, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE COCCIA

delivered the opinion of the court:

Defendant John Case and a codefendant were indicted for the January 31, 1987, murder of Cheryl Cloud and the related charges of aggravated sexual assault, aggravated criminal sexual abuse, sexual assault, unlawful restraint and, finally, concealment of a homicide. Both defendants moved to suppress inculpatory statements made while in police custody. After a joint suppression hearing, the court denied both defendants’ motions. The cases were severed for trial. Defendant’s statements of February 7, 1987, oral and written, were admitted into evidence at his trial.

On August 5, 1988, the jury acquitted defendant of all charges except aggravated criminal sexual abuse. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(a)(2).) Defendant was sentenced on September 6, 1988, to an extended term of 14 years’ imprisonment. The trial court denied defendant’s post-trial motion and entered judgment on the jury verdict. On September 16, 1988, defendant filed his notice of appeal.

Defendant’s sole issue on appeal is that his oral and written confessions were coerced by a beating he allegedly received from a detective while in police custody. He contends that his conviction should be reversed under People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571.

I

In the early morning hours of January 31, 1987, defendant, his girl friend, Georgianna Starr, codefendant Thomas Smith and the deceased, Cheryl Cloud, were drinking wine together while gathered in an alley located near Magnolia Street in Chicago. According to Starr’s trial testimony, an argument developed between her and defendant and they started fighting. Defendant knocked Starr to the ground, and she pulled him down with her where they continued to struggle.

Cheryl Cloud intervened. She punched defendant and told him to stop hitting Starr, as he was always hitting her. Starr told defendant that she would tell her brother, Phillip Starr, that defendant was beating her again. About a week earlier Phillip Starr had beaten defendant and told him to stop hitting his sister. When Cheryl Cloud hit defendant, he started hitting her back and Geor-gianna Starr got up and left, going home to an abandoned building where she and defendant lived. Later that morning defendant woke her up while getting into bed; he said he had been to the bathroom but Starr believed he had been out all night.

Sometime between 2 and 3 p.m. on January 31, 1987, the half-nude, badly battered body of Cheryl Cloud was found behind an abandoned building in Chicago. The body was clutching three strands of long black hair in one hand and had three distinct bite marks on the right facial cheek, left breast, and right breast nipple. There were extensive external injuries to the face, head, neck, eyes, breasts, back and buttocks. There was bleeding found beneath her scalp and over the surface of her brain. There were multiple abrasions to her vagina and rectum, both of which reflected the presence of semen. The cause of death was strangulation.

Testimony at the pretrial suppression hearing revealed that on Friday, February 6, 1987, at about 9 p.m., defendant and Geor-gianna Starr were located by “Area Six” Detectives Sobolewski and Thezan. They accompanied the detectives to the police station. There they were placed in separate rooms for questioning. Defendant appeared to have been drinking; his eyes were glassy, his speech was slurred. Upon arriving at the station defendant was interviewed and denied any knowledge of the Cloud homicide. He said he had been injured in a fight with Phillip Starr, Georgianna Starr’s brother, about a week or four days earlier.

Because the circumstances suggested that Cloud had died in a struggle and may have injured her attacker, the detectives noted a bruise and cuts on defendant’s right hand, his swollen nose, and scratches on his forehead. At trial, Detective Sobolewski testified that defendant also had bruises on his face. In addition, the detectives noticed that defendant had long, black hair and unusually uneven teeth, and braces. As a result, the detectives sought a forensic odontologist to take impressions of defendant’s teeth, and a forensic technician to take samples of defendant’s hair, for purposes of comparison with the three strands of hair found in Cloud’s hand and the photographs of the bite marks on Cloud’s body. Defendant signed forms consenting to these procedures.

Prior to a second interview, defendant was given Miranda warnings (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602), and again denied knowing anything about the Cloud homicide. He said he had been drinking with male friends that evening, not with Georgianna Starr. However, Starr told the detectives that she was with defendant that evening but that they had not seen Cheryl Cloud after midnight.

At about 11 p.m. on February 6, after defendant signed the consent to search forms, samples of defendant’s hair and photographs of his face and hands were made. Photographs of defendant’s mouth and impressions of defendant’s teeth and braces were taken by the odontologist, who informed the detectives of his tentative opinion that defendant’s teeth matched the bite marks on Cheryl Cloud. He said that additional observations would be made at the lab and they would be contacted the next day. Defendant then surrendered his clothes for examination and was given a paper jump suit to wear.

At about midnight, defendant was interviewed a third time. He again denied involvement in the Cloud homicide. He was then allowed to use the bathroom and was handcuffed to a ring in the wall of the interview room for the night. Detective Sobolewski said that when he left between 1 and 2 a.m., he saw defendant asleep in the interview room.

Detective Wick, at about 5 a.m. on February 7, 1987, saw defendant asleep in a chair in the interview room. At 9:30 a.m., Detective Thiel checked on defendant. Thiel asked defendant if he needed to use the bathroom or wanted anything to eat, but defendant said he did not need anything. At 11 a.m., Wick checked on defendant and received the reply that defendant did not feel like eating.

Defendant testified that he lived mostly on the streets. Defendant was confused as to exactly when on February 6 he came into police custody. He thought he had been in custody about four hours when, after impressions of his teeth were taken, he was arrested and handcuffed to the wall. In his brief, defendant estimates that these events occurred at approximately 1 a.m. on February 7.

In any event, according to defendant, while he was being handcuffed to the wall he requested counsel. In response, a detective with a bushy mustache, later identified as Detective Thiel, hit him several times in the kidneys. According to defendant, over the next 14 hours Thiel beat him several times because he denied involvement in the homicide. Thiel is alleged to have struck defendant three times in the face with the back of his hand. On one occasion Thiel allegedly punched defendant in the left ribs about 10 times, knocking defendant out of the chair even though he was still handcuffed to the wall. Defendant demonstrated this position as having his left hand in the air and being punched in the left side.

On another occasion Thiel allegedly kicked defendant in the side, kicked him in the leg, and threatened or attempted to kick him in the testicles by placing his foot against defendant and pushing hard. In addition, defendant testified that Thiel told him details of the offense in an effort to construct defendant’s confession. At one point Thiel allegedly had defendant identify codefendant Smith. When Smith called defendant a liar, Thiel allegedly kicked Smith in the chest and told him to shut up.

Finally, defendant was interviewed by an assistant State’s Attorney who told him that he was working with the police. Defendant testified that he signed a statement for the attorney because he thought he would be beaten some more if he did not sign. Defendant was then taken through intake at Cermak Hospital and placed in the jail. Defendant stated that he only received food after the assistant State’s Attorney’s questioning ended.

On cross-examination defendant described being beaten by Phillip Starr, brother of Georgianna. He said he was knocked to the ground and that the fight happened four days before his arrest. He said Starr pulled his hair and tried to cut his wrists with a razor. Defendant hurt his hand in this fight. Defendant admitted that he drank heavily and that three years earlier he had fallen while drunk and broke his jaw. Defendant stated that he slept in an abandoned building.

At 1:30 p.m. on February 7, 1987, the detectives on duty, Wick, Blomstrand and Thiel, were notified that the hair samples from defendant were consistent with the hair found with the body. Shortly afterward they learned that the dental impressions from defendant’s teeth were consistent with the photographs of the bite marks on the body. At about 2 p.m. defendant was interviewed and allegedly stated: “Okay. I’ll tell you the truth,” and made an oral confession implicating himself and the codefendant, Thomas Smith, in the Cheryl Cloud homicide. At about 3:30 and 4:30 p.m. on February 7, the detectives checked on defendant, and brought him a sandwich, cigarettes and a soda.

Later, at about 8:30 p.m., defendant made an oral statement to Assistant State’s Attorney Rich Stevens, who then made a written summary. Stevens asked Thiel to step out of the room momentarily and asked defendant about his treatment by the police. Defendant did not tell Stevens about the beatings. Stevens testified that defendant said the police had treated him well. Defendant answered “No” when asked if he had been struck, threatened, or coerced, or promised anything in any way. Defendant testified that he was told by Stevens that Stevens worked for the police and so he was afraid to tell Stevens about the beatings.

On February 8, 1987, defendant was examined at Cermak Memorial Hospital by Robert Hradek as part of the jail intake processing. Defendant removed his shirt so Hradek could observe him from the waist up. Hradek filled out a body chart which depicted diagrams of four human figures showing the front, back, left, and right sides of a human body. Hradek marked only the front and back figures, using numbers corresponding to a key on the chart. Hradek noticed no bruises but did notice that defendant had five tattoos on his arms and shoulders and a bandage on his right wrist covering his thumb. Defendant told him that he had injured his thumb in a fight four days earlier. Defendant also had scars on his face, above his heart, and under his left armpit, and on the back of his right wrist, all of which appeared to Hradek to have been there for a while. Hradek placed a mark in the area of the scapula on the back view, indicating a scar. Hradek did not mark either the figures for the left or right side views at all. Defendant did not complain to him about any beating by the police detectives. Defendant testified that he said nothing about the beating to Hradek because he thought he was working with the police.

At trial Hradek testified that he saw old bruises on defendant and that he recorded this on the body chart on the figure showing the back view of a person but that he marked the area as a scar, not as a bruise, because it was well healed. Hradek testified that he saw no fresh bruising on defendant’s body. He estimated the bruises/scars were over a week and maybe a month or two months old.

Dr. Mohamed Salem, a third-year medical resident, was the intake physician at Cermak Hospital. He examined defendant’s heart, chest and abdomen, but his report made no mention of any bruising. Dr. Salem did not testify at trial. However, at the suppression hearing, Dr. Salem testified that he had seen old bruises on the left side of defendant’s chest and had not recorded them because Hra-dek’s chart had already done that. He referred to the mark under the left scapula on the chart (indicating a scar) which showed an area of the bruising he saw. Over objection, Dr. Salem stated that the bruises appeared about three days old. Dr. Salem agreed that he was not an expert and could not determine the exact age of a bruise with the same precision as an expert. Defendant did not complain to him of any pain regarding those bruises nor did he complain about being beaten by the police. Defendant testified that he did not tell Dr. Salem about the beating or complain about his bruises because he thought Salem was working with the police. Salem referred defendant to the emergency room because defendant’s hands were shaky and he felt defendant was suffering from alcoholic withdrawal.

Detectives Sobolewski, Thezan, Wick, Blomstrand and Thiel all testified at the suppression hearing that no one beat or threatened defendant in their presence. Nor did defendant ever complain to them of any beating or threats.

On February 9, 1987, defendant was arraigned. An investigator from the public defender’s office, George Brobst, took 10 photographs of defendant at about 2 that afternoon. Eight of those photographs were admitted into evidence at the suppression hearing. (Enlargements of three were admitted at trial, showing left side bruises.) Two of the remaining five pictures showed an abrasion to the inside of defendant’s left upper lip. These injuries were attributed by defendant to the beating he allegedly received from Detective Thiel. Other photographs showed injuries on defendant’s left wrist. Defendant attributed these injuries to having been kicked out of the chair by Thiel while he was chained to the wall. Some of the photographs were not available at trial, resulting in the court hearing testimony from Brobst and using photocopies of the missing original pictures.

At the conclusion of the suppression hearing, the trial court ruled that defendant did not clearly establish that he received any injuries while in police custody. The court referred to the defendant’s testimony that he had recently fought with Phillip Starr, that he was a heavy drinker and lived on the streets. The court relied upon the photographs of defendant made at the time of his arrest on February 6 and concluded that they supported the view that defendant had received his injuries by means other than police coercion. The court specifically rejected defendant’s testimony asserting that he was beaten by police. The court found that in the totality of the circumstances, defendant’s statements were made freely, knowingly and voluntarily. In the alternative, the court found that even if defendant’s injuries had been sustained during his custody by the police, the State had established by clear and convincing evidence that the injuries were not the product of police misconduct.

II

For a confession to be admissible in evidence, the trial court must determine that it was made voluntarily without compulsion or inducement. (People v. Gholston (1984), 124 Ill. App. 3d 873, 464 N.E.2d 1179; People v. Jones (1989), 184 Ill. App. 3d 412, 541 N.E.2d 132.) The standard of voluntariness requires a knowing, intelligent and voluntary decision to confess. (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508. See also People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958.) A confession is voluntary if, based on the totality of the circumstances, the accused’s will was not overborne at the time he confessed; the confession must be the product of a rational intellect and a free will. People v. Kincaid, 87 Ill. 2d at 117, 429 N.E.2d at 511; People v. Jones (1990), 196 Ill. App. 3d 937, 957, 554 N.E.2d 516, 528.

When a defendant challenges the admissibility of his confession, the State has the burden to establish by the preponderance of the evidence that the confession was voluntary. (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 11(d); Lego v. Twomey (1972), 404 U.S. 477, 489, 30 L. Ed. 2d 618, 627, 92 S. Ct. 619, 627; People v. Caballero (1984), 102 Ill. 2d 23, 33, 464 N.E.2d 223, 227.) On a motion to suppress it is the trial court’s duty to resolve conflicting evidence and determine the credibility of the witnesses. People v. Jones, 184 Ill. App. 3d at 423, 541 N.E.2d at 140; People v. Clark (1986), 114 Ill. 2d 450, 501 N.E.2d 102.

A reviewing court will not reweigh the evidence as if it were a trial court and will not disturb the trial court’s determination of a motion to suppress evidence unless that finding is against the manifest weight of the evidence. (People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958; People v. Galvin (1989), 127 Ill. 2d 153, 162, 535 N.E.2d 837, 841.) Thus, a trial court’s findings as to voluntariness "will not be reversed unless they are against the manifest weight of the evidence. (People v. Caballero, 102 Ill. 2d at 33, 464 N.E.2d at 228; People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949.) Of course, the reviewing court is required to defer to the findings of the trial court where that court has assessed credibility, demeanor, and all relevant facts. (People v. Reid (1990), 136 Ill. 2d 27, 56, 59, 554 N.E.2d 174, 187, 188-89.) The reviewing court is not limited to the evidence presented at the motion to suppress but also may consider the evidence adduced at trial. People v. Caballero, 102 Ill. 2d 23, 464 N.E.2d 223.

In the case at bar the trial court found that defendant’s confessions met the above standards and were admissible. The trial court rejected defendant’s argument that the rule of People v. Wilson (116 Ill. 2d 29, 506 N.E.2d 571) applied. In Wilson, the supreme court said:

“[W]hen it is evident that a defendant has been injured while in police custody, the State must show, by clear and convincing evidence, that the injuries were not inflicted as a means of producing the confession. [Citations.] This requires more than the mere denial by the State’s witnesses that the confession was coerced.” (116 Ill. 2d at 40, 506 N.E.2d at 575.)

The Wilson rule applies where it is conceded or is clearly established that the defendant received injuries while in police custody. (People v. Dale (1989), 189 Ill. App. 3d 704, 545 N.E.2d 521, citing People v. La Frana (1954), 4 Ill. 2d 261, 267, 122 N.E.2d 583, 586.) In People v. Wilson the court applied the rule where the State argued that any injuries sustained by the defendant were received after he had confessed. In the case at bar there is a factual conflict presented over whether defendant sustained the injuries in question before or after he was taken into custody by the police on February 6,1987.

We do not automatically require the State to prove voluntariness by clear and convincing evidence whenever there is a factual conflict as to when alleged injuries occurred. To do so would seriously distort the true purpose of the rule. The rule was intended for factual situations in which there was “little question” (People v. Thomlison (1948), 400 Ill. 555, 562, 81 N.E.2d 434, 438) that the defendant was assaulted after he came into police custody but the sole witnesses to the custody, usually police officers, deny any knowledge of how the defendant sustained his injuries. Under the usual standard for proving voluntariness, i.e., by the preponderance of the evidence, such passive denials may allow the State to prevail without proving the actual circumstances of the confession. Deeming the preponderance standard to be inadequate, the Wilson rule replaced it with the clear and convincing evidence standard. The predicate necessary for applying the higher standard of proof, however, is the threshold showing that the defendant received his injuries after coming into police custody.

In People v. Davis (1966), 35 Ill. 2d 202, 206, 220 N.E.2d 222, 225, the defendant complained to the jail intake doctor that he had pain in his chest and arms and that he had been beaten by the police. The doctor examined the defendant and concluded that the injuries, bruises and discolorations were the result of trauma. The official jail records reflected the doctor’s testimony. Despite the denials by the officers of any wrongdoing, our supreme court stated that there was no evidence in the record tending to explain the injuries on any basis other than police brutality, and reversed the conviction.

In the case at bar the trial court held that it had not been clearly established that defendant was injured after coming into police custody. In so ruling, the trial court reviewed the photographs of defendant made on February 6 by the police, as well as the February 9 photographs produced by the public defender’s investigator. The enlargements of the latter photographs were viewed at trial by the court. The trial court did not credit defendant’s testimony that he had been beaten by the police. Finally, the court considered that the absence of any complaint by defendant to the assistant State’s Attorney, or to Hradek, or Dr. Salem, was strong evidence that defendant had not been beaten by the police. It is not clear what weight, if any, the trial court gave to the body chart or Hradek’s or Salem’s testimony concerning their observations of defendant on February 8, 1987. Given defendant’s testimony about a prior fight, and the lifestyle he lived, however, the trial court concluded that there was a basis other than police brutality to explain defendant’s injuries.

In People v. Dale (1989), 189 Ill. App. 3d 704, 717, 545 N.E.2d 521, 529, a doctor testified to certain chest injuries sustained by the defendant, which defendant claimed resulted from a beating by the police to induce his confession. Defendant failed to complain to the assistant State’s Attorney, the court reporter, or jail intake personnel about being beaten or about his alleged injuries. The jail intake technician completed a body chart of defendant without indicating any chest bruises or injuries. We held that this evidence sufficiently supported the trial court’s findings that defendant had confessed without being beaten by the police. By contrast, in People v. Banks (1989), 192 Ill. App. 3d 986, 992, 549 N.E.2d 766, 770, we reversed a conviction where the defendant complained to a doctor at Cermak Hospital that he had been beaten and a bag had been placed over his head, and the injuries sustained were identified by the doctor as consistent with those claims.

We do not conclude that a defendant’s failure to report the fact of an alleged beating by police is necessarily dispositive of the factual question whether he has been beaten while in police custody. The trial court must also consider the defendant’s explanation for any lack of complaint when circumstances would make it natural to make one. However, here the trial judge concluded that defendant’s failure to complain was evidence that he was not injured while in police custody, despite his explanation for not voicing any complaint. In addition, the trial court concluded that defendant had not met his burden to show that his injuries had occurred while he was in police custody because there were alternative explanations pointing to preexisting injury. The trial court’s conclusion is subject to review under an abuse of discretion standard. People v. Hooper (1989), 133 Ill. 2d 469, 497, 552 N.E.2d 684, 695.

In the Hooper case our supreme court concluded that there was no abuse of discretion by the trial court where it found that the defendant had failed to show his injuries occurred while he was in police custody. There, the defendant testified that he was beaten in the police squad car at the time of his arrest. He said he was then taken underneath a viaduct, removed from the car and knocked onto the ground and questioned with a shotgun to his head. He said his right leg was twisted, causing pain. (133 Ill. 2d at 484, 552 N.E.2d at 689.) The supreme court held that the trial court did not abuse its discretion because the marks of blows to the defendant’s head were not visible in photographs taken on his arrest and his general appearance was not that of one thrown to the ground. An infected cut on defendant’s ankle could have been received as long as five days before his arrest or might not have been the same as the wound on his right leg, which was shown to the jury. People v. Hooper, 133 Ill. 2d at 497, 552 N.E.2d at 695.

In the case at bar we conclude that the trial court did not abuse its discretion in ruling that defendant had failed to establish that he incurred injuries while in police custody.

The defendant argues that the February 9 photographs of his torso and face (an abrasion to the inside of his upper left lip) clearly require the opposite conclusion, i.e., that the injuries he received, especially bruises to his left side, were administered during police custody and, specifically, while his left arm was chained to the wall of the interrogation room. We have viewed the photographic trial exhibits, including the enlarged photographs of defendant’s left side. We note that the trial judge also viewed these exhibits at trial, as well as the original photographs at the suppression hearing. At trial the judge did not alter his decision to admit the confession based on the enlarged photographs, nor can we say that they clearly show injuries that must have occurred during police custody and not before.

Defendant argues that he surrendered his clothing to the police on February 6 but they made no notation at that time of such bruises. Defendant points out that the police were attentive to his other injuries (on his hands and face), and the possibility that he had sustained them in the struggle with the deceased. Therefore, he argues, the police would have noticed the injuries on his torso had they been there on the evening of February 6. We are not persuaded by this argument, as the police were initially looking at injuries on defendant’s face and hands, and it is not established that when he changed into the paper suit he was being watched by the officers.

Furthermore, defendant’s own testimony, consistent with his initial statement to the police, was that he was beaten four days before February 6 by his girl friend’s brother. Subsequent trial testimony by Georgianna Starr lends further substance to the possibility that this beating was the source of the injuries to defendant’s mouth and torso. Starr testified that her brother had administered a beating to defendant about a week before January 31. The reason for the beating was that defendant beat Georgianna Starr and her brother retaliated in her defense. On January 31, Starr and defendant fought again, and she threatened to tell her brother. While it is by no means conclusive proof of the event, Starr’s trial testimony offers at least circumstantial corroboration that defendant was beaten by Phillip Starr four days before February 6. As defendant both admitted as much to the detectives and, in part, to Hradek, as well as testified under oath to the same matter at the suppression hearing and at trial, we must conclude that there is an evidentiary basis to support the trial court’s conclusion that a prior fight could have accounted for the injuries defendant sustained.

Defendant argues that we are compelled to reverse the trial court because of our decision in People v. Smith (1989), 197 Ill. App. 3d 226, 554 N.E.2d 263, where we reversed the trial court’s suppression ruling in the codefendant’s case, applying the Wilson doctrine. For a number of reasons, we disagree. We conclude that People v. Smith is distinguishable from the case at bar, as we specifically held that Smith had met his initial burden of persuasion that he was injured while in police custody. (People v. Smith, 197 Ill. App. 3d at 231, 554 N.E.2d at 265.) By contrast, defendant John Case has not demonstrated that his injuries were sustained while in police custody rather than prior to that custody.

In Smith’s case the evidence showed that he had but one minor bruise on his inner bicep at the time he was taken into custody on February 7. The evidence also showed that Smith sustained a split lip and bruises on his right shoulder, right side, and lower right back. The jail intake technician in that case was someone other than Hradek, and she testified that she had no independent recollection of examining Smith and did not require Smith to disrobe for the examination. We also noted that the technician’s report contained an obvious error in asserting that it was made at a time when it was impossible for Smith to have been present. The technician’s testimony was based solely on her report. Finally, neither the police officers nor the assistant State’s Attorney could explain how Smith received his injuries and a witness, the codefendant’s girl friend, corroborated his lack of injury at the time of his arrest. People v. Smith, therefore, is distinguishable as it was based on a record containing undisputed evidence that Smith was injured while in police custody and no evidence whatever to support a contrary finding.

We have reviewed the exhibits defendant has placed in the record. We do not, of course, substitute our judgment for that of the trial court or merely reweigh the evidence. (People v. Jones (1989), 184 Ill. App. 3d 412, 425-26, 541 N.E.2d 132, 140.) We find that the manifest weight of the evidence does not require a contrary conclusion to that reached by the trial court. (People v. King (1986), 109 Ill. 2d 514, 526, 488 N.E.2d 949, 955.) Therefore, we conclude that the trial court did not abuse its discretion in declining to apply the doctrine of People v. Wilson in this case. In all other respects we affirm the trial court’s ruling that the confession was voluntarily and intelligently obtained. People v. Bernasco, 138 Ill. 2d at 358-60, 562 N.E.2d at 962-63.

In light of our decision to affirm the trial court’s ruling admitting defendant’s confession, we find it unnecessary to decide the State’s claim that, in any event, the harmless error rule would require affirmance of defendant’s conviction.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

SCARIANO, P.J., and DiVITO, J., concur.


author: JUSTICE COCCI A

text:
    THE PEOPLE ex rel. THE VILLAGE OF FOREST VIEW, Plaintiff-Appellant, v. THE VILLAGE OF LYONS, Defendant-Appellee (Lake River Corporation, Amicus Curiae).

    First District (2nd Division)
    No. 1-90-0896
    Opinion filed July 30, 1991.

      Rosenthal, Murphey, Coblentz & Janega, of Chicago (John B. Murphey and Katherine S. Janega, of counsel), for appellant.
    Thomas J. Cisar and Eugene J. Berkes, both of Cisar & Mrofka, Ltd., of Oak Brook, for appellee.
    Carol B. Manzoni, Arthur F. Radke, and Shannon S. Sullivan, all of Ross & Hardies, of Chicago, for amicus curiae.

   JUSTICE COCCI A

delivered the opinion of the court:

This is a quo warranto action. Plaintiff, the Village of Forest View, appeals from an order entering summary judgment in favor of defendant, the Village of Lyons, which voided Forest View’s annexation of land which Lyons had previously annexed.

On appeal, Forest View contends that the court erred in granting Lyons’ summary judgment motion and in denying Forest View’s summary judgment motion, because Lyons’ previous annexations were illegal because Forest View’s quo warranto action is not barred by the statute of limitations as Lyons’ annexation did not meet statutory contiguity requirements, and Lyons’ annexation is barred by the doctrine of estoppel because Lyons’ counterclaim is barred by a contiguity requirement, and by the doctrine of laches; and because Lyons lacks standing to challenge the Forest View annexation.

The record in this summary judgment action sets forth the following allegations and facts.

As a matter of convenience, the parties have referred to the relevant property as parcel “A” through parcel “E.” (See the map included herein as an appendix.) The “subject property” which Forest View wishes to annex is parcel “E.” The subject property is owned by the Metropolitan Water Reclamation District of Greater Chicago (Metropolitan). The property is leased to the Lake River Corporation, which filed an amicus curiae brief in support of Forest View’s position.

In 1945, Lyons began passing a series of 26 ordinances which purported to annex all of the unincorporated territory bounded by four municipalities, including Lyons on the northern border and Forest View on the eastern border. Each ordinance purported to accomplish an involuntary annexation (pursuant to Ill. Rev. Stat. 1945, ch. 24, par. 7 — 11, now Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1— 13) of a 20-acre parcel of land south of Lyons’ 47th Street village limits. (The strip annexations were done on approximately a monthly basis, one strip at a time, because the involuntary annexation statute at that time prohibited the annexation of more than 30 acres at a time.)

Between November 1945 and July 1946, Lyons’ first 10 ordinances annexed land marked as parcel “A” on the attached map.

On March 28, 1947, quo warranto proceedings were filed against Lyons, challenging the first series of 10 strip annexations. On March 18, 1948, the Illinois Supreme Court held that the ordinances purporting to annex these strips of land (marked as parcel “A” on the map) were a nullity. (People ex rel. Universal Oil Products Co. v. Village of Lyons (1948), 400 Ill. 82, 79 N.E.2d 33.) The court explained that, under the statute, a 30-acre parcel of territory to be annexed must be wholly bounded by one or more municipalities or navigable waters. (Universal Oil Products, 400 Ill. at 87, 79 N.E.2d at 36.) The parcel “A” strips were not wholly bounded by municipalities or navigable waters.

Between August 1946 and March 1947, the next eight ordinances of the Village of Lyons attempted to annex land marked as “Parcel B.” On June 24, 1948, the circuit court of Cook County entered a judgment declaring this second group of eight ordinances to be nullities, as the land sought to be annexed was not “wholly bounded” by municipalities or navigable waters since the attempted annexation of the land comprising parcel “A” had been declared void in Universal Oil. People ex rel. Gortsch v. Village of Lyons (1948), No. 47-C-6153.

Between October 1947 and June 8, 1948, the next eight ordinances adopted in Lyons attempted to annex the land marked as parcels “C” and “D” on the attached map.

The annexation of these last eight strips has never been judicially declared invalidly annexed.

Designation of the last eight parcels is separated into “C” and “D” as the strips in “D” were annexed after the Illinois Supreme Court filed its decision in Universal Oil on March 18, 1948.

The property, an irregularly shaped parcel of land marked as “Parcel E,” extends from Forest View’s eastern boundary, to the west, across a portion of the five most eastern strips of parcels “C” and “D.”

In 1984, Metropolitan and the Lake River Corporation petitioned that parcel “E” be annexed to Forest View.

On July 10, 1984, pursuant to an annexation agreement, Forest View enacted an ordinance annexing the subject property.

Prior to 1984, Forest View provided fire, police, water and all governmental services to the subject property. Lyons provided no services to the property.

On August 26, 1986, Lyons’ attorney wrote to the Lake River Corporation that Lyons had become aware that the subject property, where “you are doing business,” is “located within the corporate limits of the Village of Lyons.”

In November 1987, Lyons issued a revised zoning map, showing for the first time that the subject property fell within the boundaries of the Village of Lyons. George Kucharchuk, the village inspector and a board of trustees member, testified at a deposition that all of Lyons’ official maps prior to November 1987 did not include the subject property within the limits of Lyons. The map was prepared by the village engineer at the direction of Kucharchuk.

On March 21, 1988, Forest View filed a complaint in quo warranto, challenging the validity of Lyons’ purported annexations of numerous parcels of land, including the subject property.

Forest View’s first amended complaint in the present action sought a declaration that these final eight ordinances were void, pursuant to Universal Oil Products. Forest View also sought a declaration that its own annexation of the subject property was legal and an order requiring Lyons to account for and return to Forest View all tax revenues received by Lyons subsequent to Forest View’s annexation of the subject property.

Both parties subsequently filed motions for summary judgment.

On February 26, 1990, the circuit court: (1) granted Lyons’ motion for summary judgment; (2) denied Forest View’s motion for summary judgment; (3) declared Lyons’ annexations of the eight strips (marked as “C” and “D” on attached map) valid; (4) declared Forest View’s annexation of the subject property invalid and void; (5) ousted Forest View from asserting any jurisdiction over the subject property; and (6) found Forest View’s action was barred by the statute of limitations. In its memorandum of decision, the trial court recited two bases for its decision in favor of Lyons.

First, Lyons’ final eight ordinances were valid because the first six parcels were annexed prior to the June 24, 1948, judgment of ouster in People ex rel. Gortsch and had never been the subject of a judgment of ouster. The court reasoned that the annexations of parcels “A” and “B” were not invalid ab initio; instead, they were only invalid from the date of the order of ouster on June 24, 1948. Since the parcel “C” strips were annexed between October 1947 and March 1948, before the June 24, 1948, ouster order, then parcel “C” could be considered “wholly bounded” and validly annexed. Since parcel “C” was validly annexed, parcel “D” was also validly annexed. Consequently, Forest View was prevented from annexing parcel “E,” which cut across parcels “C” and “D.”

The trial court erred in finding parcel “C” was “wholly bounded by *** one or more municipalities,” as required by the relevant statute. Ill. Rev. Stat. 1947, ch. 24, par. 7 — 11, now Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—13 (involuntary annexation).

The map clearly shows that the territory lying to the east of parcel “C,” i.e., the strips labeled parcel “D,” was not incorporated territory. (Notably, these strips were not annexed by Lyons until May 1948 and June 1948, after the March 18, 1948, Illinois Supreme Court decision finding parcel “A” was not validly annexed.)

At the time of the attempted annexation of the strips in parcel “C,” between October 1947 and March 1948, the territory lying to the east of “C” (including all of parcel “D”) was not incorporated.

Another erroneous basis for the trial court’s decision is that an order finding an annexation ordinance invalid is not void ab initio. This reasoning is not supported by the previous decisions which nullified Lyons’ annexation ordinances for parcels “A” and “B.”

In Gortsch, the court expressly found the ordinances were “illegal, null and void and of no force and effect for the reason that the defendant village did not have lawful authority to annex such ordinances.” Moreover, the parcels “are not now and never have been within the lawful territorial limits of the defendant, Village of Lyons.” (Emphasis added.)

In Universal Oil, our supreme court found the ordinances “were invalid in their entirety.” (Universal Oil, 400 Ill. at 92.) The annexation ordinances were each “a nullity, and in legal effect no ordinance at all.” (Emphasis added.) Universal Oil, 400 Ill. at 87.

Moreover, Illinois case law consistently indicates that the finding that an annexation ordinance is null necessarily makes it void ab initio. See, e.g., People ex rel. Village of Northbrook v. City of Highland Park (1976), 35 Ill. App. 3d 435, 440, 342 N.E.2d 196, 199 (where statute of limitations has run, annexation must be challenged on the ground that it was “void ab initio for want of subject matter jurisdiction”); People ex rel. Des Plaines v. Village of Mt. Prospect (1975), 29 Ill. App. 3d 807, 814, 331 N.E.2d 373, 379 (challenge must be that annexation was “void ab initio”).

Here, the purported annexations of the strips in parcels “A” and “B” were void ab initio. The annexations were not void merely from the date of the judicial declaration of ouster.

Thus, the later attempts to annex land in parcels “C” and “D” were also void, since they were never “wholly bounded by one or more municipalities.” Ill. Rev. Stat. 1947, ch. 24, par. 7 — 11.

The trial court cited Emery v. Hennessy (1928), 331 Ill. 296, 304, 162 N.E. 835, 838, for the proposition that a judgment of ouster is not retroactive. Emery concerned voters’ rights to have their votes counted where their district was declared invalidly annexed after the election. The court in Emery found that as a practical matter, the status of voters must be determined at the time of the election. The case at bar contains no similar possibility of prejudice due to rights acquired by intervening third parties. In fact, as evidenced by Lyons’ failure to render governmental services or even include it in its official maps for over 30 years, Lyons has never tried to exercise rights over the subject property.

As a second ground for its decision, the trial court found that the action by Forest View was barred by the statute of limitations (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—46). We disagree.

The applicable statute of limitations provides that no action contesting an annexation shall be initiated more than one year after the annexation becomes final. (Ill. Rev. Stat. 1987, ch. 24, par. 7— 1 — 46.) One exception exists. The one-year limitation does not apply “to annexations of territory which was not contiguous at the time of annexation and is not contiguous at the time an action is brought to contest such annexation.” Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1— 46.

In order to determine whether the one-year limitation is a bar to this action, this court must determine whether the attempted annexation was of contiguous land, which in turn means it must look at the strip annexation program of Lyons in the 1940’s. The very nature of the central issue, then, is whether the land was contiguous to Lyons at the time of the October 1947 — March 1948 purported annexation of strips in parcels “C” and “D.” Thus, the one-year limitation is not applicable. Accord People ex rel. Village of Hazel Crest v. Village of Homewood (1985), 132 Ill. App. 3d 632, 478 N.E.2d 426.

Furthermore, “contiguity” is not satisfied by a mere touching of the annexed territory to the annexing municipality. People ex rel. Adamowski v. Village of Streamwood (1959), 15 Ill. 2d 595, 155 N.E.2d 635.

Lyons tried to annex rectangular strips of land which were 300 feet in an east-west direction by 2,675 feet in a north-south direction, jutting out from Lyons. The parcels are approximately nine times longer than wide. These are not considered “contiguous” under the relevant case law. See, e.g., City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 385 N.E.2d 687 (court found no contiguity between strip of land 60 feet wide by 1,587 feet long, which bordered city for only 60 feet); People ex rel. Village of Long Grove v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 455, 513 N.E.2d 408 (no contiguity where 95-acre tract of land shares only a 600-foot boundary with village, and remainder of parcel surrounded by another municipality); Westcom, Inc. v. Woodridge Park District (1977), 49 Ill. App. 3d 903, 364 N.E.2d 721 (court found no contiguity where a common boundary at one end was only 120.5 feet long, and strip then extended perpendicularly for 2,640 feet to another parcel; People ex rel. Coojar Realty Corp. v. Village of Burr Ridge (1967), 81 Ill. App. 2d 203, 225 N.E.2d 39 (court found an improper strip annexation and invalidated annexation of road adjoining village for 300 feet, then extending out from village for one-half mile).

“[S]trip or corridor annexations *** do not satisfy the contiguity requirement because they are merely a subterfuge to reach outlying areas.” (Long Grove v. Buffalo Grove, 160 Ill. App. 3d at 462, 413 N.E.2d at 412.) The attempted annexation by Lyons can hardly be said to fulfill the contiguity requirement’s purpose of permitting “the natural and gradual extension of municipal boundaries to areas which ‘adjoin one another in a reasonably substantial physical sense.’ ” People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1, 12, 417 N.E.2d 125, 130, quoting Western National Bank v. Village of Kildeer (1968), 19 Ill. 2d 342, 352.

Thus, the various strip annexations were not contiguous to Lyons, and the one-year statute of limitations does not bar this action.

In conclusion, the trial court erred in entering summary judgment for the Village of Lyons. Summary judgment should be entered in favor of the Village of Forest View.

In view of our holding, we need not address additional contentions raised by Forest View.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded with directions to enter summary judgment in favor of plaintiff Forest View.

Reversed and remanded with directions.

SCARIANO, P.J., and HARTMAN, J., concur.

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