author: JUSTICE KNECHT JUSTICE LUND,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICKEY MYERS, Defendant-Appellant.
    Fourth District
    No 4-88-0568
    Opinion filed June 21, 1989.
    LUND, J., specially concurring.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

After a jury trial in the circuit court of Livingston County, the defendant, Mickey Myers, was found guilty of aggravated battery in that he knowingly or intentionally caused bodily harm to a correctional institution employee. (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4(b)(6).) He was sentenced to a term of eight years in the Department of Corrections consecutive to his current sentence.

The defendant appeals his conviction on the sole ground he was denied a fair trial due to the shackling of his key witness. We affirm.

On October 14, 1987, Terry Williams, a counselor at Pontiac Correctional Center, was scalded with water while walking past a row of cells in a segregation unit. Williams received first and second degree burns on areas of his head, face, and neck.

At trial Williams testified he knew the liquid came from the defendant’s cell because it is directly in front of a guard tower and because as he walks down the cell row he glances at each cell and the number above it. Williams also testified that just before getting hit with the substance he saw the defendant standing in the middle of his cell holding a bowl-container.

Other evidence from the prosecution at trial consisted of (1) objects found in the defendant’s cell: a bowl still wet to the touch, a pair of gloves, and an extension cord with the end stripped exposing bare wires, generally referred to as a “stinger” used to heat liquid; (2) corroboration of the testimony of Williams and a corrections officer (Officer Munson), in that the floor around the defendant’s cell was wet after the incident; and (3) testimony by Munson the defendant “admitted having done it.”

The defense presented one witness, James Allen, another inmate at Pontiac Correctional Center. The circuit court ordered Allen shackled by one hand to a waist-type device he was wearing. Before Allen was allowed to testify, the defense objected to his being shackled. The court allowed the shackles, holding, “I think everyone knows that he is incarcerated in the Department of Corrections, and I just can’t imagine any possible prejudice.” Allen was brought into and taken out of the courtroom out of the presence of the jury.

Allen testified he was housed in the cell next to the defendant at the time of the incident. Allen stated the defendant could not have thrown the liquid as the incident occurred three or four cells down the gallery and he and the defendant were talking at the time Williams was scalded. On cross-examination, Allen testified his adult convictions consisted of robbery, kidnapping, rape, and murder.

Just prior to the sentencing hearing, the court found the defendant was not prejudiced by the shackling of Allen and denied the defendant’s motion for a new trial. Addressing the defendant’s arguments at this time, the court held:

“I am not aware of any way the jury was informed or would have known he was shackled. I don’t think the jury was aware of the fact that he was shackled unless he would have shown them that. Because I think the shackling there is underneath the table in such a way the jury would not see it.”

On appeal, the defendant argues the shackling affected the credibility of the testimony of his key witness thus denying him a fair trial. In response, the State argues the shackling did not affect the credibility of the witness’ testimony.

Before the issue of shackling as it might affect credibility can arise, there must be evidence the jury knew the witness was shackled. Here, the record contains no indication the jury was aware the witness was shackled. The trial court described the restraint as a waist-type device with one hand attached to the witness stand underneath a table, and stated it did not think the jury was aware of the shackles.

The defendant does not argue the shackles were visible, only the trial court erred in shackling Allen. It is reasonable to infer the defendant’s failure to comment on the visibility of the shackles suggests they were not openly visible. For these reasons we are unable to determine if any member of the jury saw the shackles. Absent such a showing, there is no issue to consider. Further, even if the shackles were visible to one or more members of the jury, there is no showing of prejudice.

Illinois courts have been consistent with the issue of shackling, following the principle laid down in Illinois v. Allen (1970), 397 U.S. 337, 348, 25 L. Ed. 2d 353, 361, 90 S. Ct. 1057, 1063, which holds a trial judge has wide discretion in maintaining the security of his or her courtroom. “[A] State witness, like a defendant, may be shackled for proper reasons when he appears in court.” People v. Sullivan (1977), 48 Ill. App. 3d 787, 792, 362 N.E.2d 1382, 1386.

In People v. Robinson (1981), 92 Ill. App. 3d 972, 416 N.E.2d 793, inmate witnesses for the defendant were ordered shackled before a jury. The court in Robinson held “[t]he fact that they were shackled was merely another indication of that residency *** [and] could not have detracted from the fairness of the trial.” (Robinson, 92 Ill. App. 3d at 974, 416 N.E.2d at 796.) Where inmate witnesses were seen as being escape risks, Federal courts have allowed shackling in front of juries. United States v. Roustio (7th Cir. 1972), 455 F.2d 366; United States v. Garcia (7th Cir. 1980), 625 F.2d 162.

In a case very similar to this one, the Seventh Circuit ruled “the shackling of witnesses is an unfortunate and undesirable practice which should be employed only in cases of extreme need.” (United States v. Esquer (7th Cir. 1972), 459 F.2d 431, 433.) However, the Esquer court found the shackling of the witness not to be reversible error. “In such a situation, without some showing of actual prejudice, the conviction must be allowed to stand.” Esquer, 459 F.2d at 433.

The circuit court in Livingston County gave no indication as to why Allen was ordered shackled other than he was an inmate. The court also did not state for the record whether it felt Allen posed any type of threat to the peace and dignity of the courtroom. While it would be preferable for the court to give reasons for shackling, there was no error here for two reasons. First, there is no showing the jury was aware of the shackling. Second, the defendant has made no showing of actual prejudice.

Accordingly, the judgment of the circuit court of Livingston County is affirmed.

Affirmed.

SPITZ, J., concurs.

JUSTICE LUND,

specially concurring:

Defendant was an inmate of the Pontiac Correctional Center and was charged with scalding a correctional officer. Defendant’s witness was a fellow inmate, serving time, by his admission, for robbery, kidnapping, rape, and murder. The jury, the court staff, the attorneys, and the judge are entitled to protection. It would be a foolish trial judge who would order the shackles removed. Of course, an alternative might be to fill the courtroom with SWAT team members. When trying cases of this type, I find no necessity for a judicial statement justifying the restraints.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    JANET L. NEES et al., Petitioners-Appellants and Cross-Appellees, v. MARIANNE LYNN DOAN, Respondent-Appellee and Cross-Appellant (Infant Girl Doan, Respondent-Appellee and Cross-Appellee; Ronald Potter, Respondent).
    Fourth District
    No. 4-88-0848
    Opinion filed June 21, 1989.

      Arthur M. Lerner, of Lerner & Kirchner, of Champaign, for appellants.
    Craig H. DeArmond, State’s Attorney, of Danville (Larry S. Mills, Assistant State’s Attorney, of counsel), for appellee Gerald Chrisman.
    David J. Ryan, of Dukes, Martin, Helm & Ryan, Ltd., of Danville, for appellee Marianne Lynne Doan.
    Thomas M. Goodwin, of Dougherty, Hofmann & Goodwin, of Danville, guardian ad litem.

   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by the petitioners from the denial by the circuit court of Vermilion County of their adoption petition. The petitioners James and Patricia Nees filed their petition on July 30, 1987. On that same day, the natural mother Marianne Doan executed a final and irrevocable consent to the adoption of her infant daughter. On the following day, the natural father also consented to the adoption. The trial court ordered termination of parental rights on January 31, 1987. Temporary custody of the child was given to the petitioners, an attorney was appointed guardian ad litem for the infant, and the county department of probation services was ordered to investigate the petitioners and report to the court.

A hearing was held on the Neeses’ petition to adopt on December 8, 1987. The parties agreed to waive a six-month waiting period. At the time of the hearing, the child had been living with the petitioners since July 29, 1987. She was covered by medical insurance and had a room of her own in the petitioners’ two-bedroom home. The home had a value of approximately $70,000 and there was no outstanding mortgage. The petitioners indicated they were able to meet their current financial obligations. The monthly income of the family is approximately $1,000 and the expenses are about $900. Of this $678 per month came from pension and disability payments to Patricia Nees. The parties had filed for bankruptcy in 1985. Evidence was presented to suggest the petitioners’ current comfortable financial situation was due primarily to an inheritance of $135,000 received by the petitioners from the estate when James Nees’ father died after their bankruptcy.

James Nees testified he graduated from high school in 1960 and had taken some courses at a junior college. The evidence showed James Nees had a history of criminal activity and continual difficulty holding a job for long periods of time. In 1979, he was charged with burglary in Vermilion County. The charges were later reduced to disorderly conduct, and the petitioner was given two years’ probation. In 1976, the petitioner was charged with retail theft in Vermilion County. However, these charges were later dismissed. In 1975, defendant was charged and convicted of burglary in Champaign County. He was again placed on probation and completed it successfully.

James Nees’ employment history showed he has generally been employed as a janitor or maintenance worker since his graduation from high school. Nees was fired twice from employment with the University of Illinois. The first time in 1975 was for theft and led to his burglary conviction in Champaign County. He was rehired by the University and was shortly thereafter fired for sexual harassment of a female co-worker in 1977. Prior to that, Nees had worked at St. Elizabeth’s Hospital and had been fired for taking workers’ compensation from the hospital while working a similar job at a second employer. More recently, the petitioner had been fired in 1987 from a maintenance job with the Sheraton Inn in Danville for forging a letter of recommendation from his employer. At the time of the adoption hearing, he held two part-time jobs earning around $4 an hour. The petitioner was 45 years old.

Patricia Nees testified she was 37 years old. The evidence showed she was diabetic, had a heart condition, arthritis, and was obese. The Social Security Administration determined she was disabled and her income was largely derived from social security disability payments. She also worked at St. Elizabeth’s Hospital for 17 years and received pension payments as a result of this employment. Despite her health problems, the petitioner claimed she was able to take care of the child. She also testified that she had a history of caring for other people’s children and worked at a church nursery.

Carol Fisher of the Vermilion County Probation Department testified she had carried out an investigation at the order of the court in this matter. She stated the Neeses had withheld employment information from her and withheld financial information by understating their assets. She also stated she visited the petitioners’ home and it was clean, of fair size, and well furnished. There was no indication of any danger to the child and the child appeared to be clean and well cared for.

Mary Ann Heinrich testified she worked for the Illinois Department of Children and Family Services (DCFS). She investigated the Neeses for certification as foster care parents. She also testified the Neeses had misled her concerning their background. Specifically, Mr. Nees had not indicated any conviction for serious crime or having received mental health counselling. She recommended the Neeses not be licensed as foster care parents. Her recommendation was not based so much on the past criminal activities of James Nees, but primarily on the Neeses’ failure to be forthcoming and honest in dealing with DCFS.

Dr. Stanley Hogsett testified on behalf of the petitioners. Dr. Hogsett is a clinical psychologist and examined James Nees on two occasions. On these occasions, he administered several psychological and intelligence tests. He testified James Nees was of normal intelligence and did not suffer from any psychopathology. Nothing revealed in the tests indicated the petitioner would not be an appropriate parent.

On December 28, 1987, the court denied the Neeses’ petition for adoption. The child was made a ward of the court, and the court services department was directed to place the child in foster care. On January 18, 1988, the petitioners filed a motion for reconsideration. On January 20, 1988, the natural mother Marianne Doan filed a petition to void or revoke her consent to the adoption. On January 26, 1988, the court ordered any proceedings concerning the adoption of the child stayed. On October 17, 1988, the petitioners’ post-trial motions were denied, and on October 28, 1988, the motion by the natural mother to revoke her consent to adoption was denied by an order of the court. Both the petitioners and the mother Marianne Doan filed timely notices of appeal.

The petitioners argue the trial court erred because it had no substantial basis on which to deny the adoption. Section 2 of the Adoption Act (Act) sets forth the standard for adoptive parents:

“(a) A reputable person of legal age and of either sex, provided that if such person is married, his or her spouse shall be a party to the adoption proceeding, including a husband or wifdesiring to adopt a child of the other spouse, in all of which cases the adoption shall be by both spouses jointly.” (Ill. Rev. Stat. 1985, ch. 40, par. 1502(a).)

Section 15 of the Act also states: “The welfare of the child shall be the prime consideration in all adoption proceedings.” Ill. Rev. Stat. 1985, ch. 40, par. 1519.

The petitioners emphasize in their brief the excellent care which they have provided for the child and the voluntary nature of the consent provided by the child’s natural parents. Neither of these issues is contested on appeal. The evidence universally shows the .child was well cared for and there was no serious doubt the petitioners were capable for caring for the child at this time. All parties agree that the consent provided by the natural parents was adequate for the purposes of adoption by the Neeses.

An adoption decree is not in the nature of a consent decree, rather, its entry is dependent upon the court’s findings from the evidence, if any, that the adoption is for the welfare of the child. (In re Adoption of Lucas (1980), 87 Ill. App. 3d 1100, 409 N.E.2d 521.) In this case, there were considerable grounds for finding the adoption would not be in the best interest of the child. In addition to James Nees’ considerable criminal background, there was also his continuing pattern of dishonesty in dealing with both his employers and the public agencies assigned to investigate his background. There is considerable instability in his employment history, and at the time of the circuit court’s decision, the petitioner had been employed for only a short period of time in two part-time minimum-wage positions. The dissipation of a considerable inheritance and the petitioners’ filing for bankruptcy provided the circuit court with additional grounds to question the continuing financial stability of the petitioners. Although the testimony tended to indicate Patricia Nees was currently capable of dealing with the requirements of the child, she had retired on disability and had been determined to be disabled by the Social Security Administration. At the time of the court’s decision she continued to suffer from serious health problems. For these reasons, the circuit court had ample justification for finding the adoption would not be in the best interest of the child in this case.

Section 2 of the Act also requires the adoptive parents be reputable persons. In this case, James Nees’ criminal history, his continuing pattern of deception, and employment instability would justify the court in finding that he was not a reputable person for the purposes of the Act.

Petitioners in their brief rely heavily on In re Adoption of Smith (1976), 38 Ill. App. 3d 217, 347 N.E.2d 292. They appear to argue Smith holds a court may approve an adoption even when the potential adoptive parents are less than ideal candidates. In Smith, the potential adoptive parents were the child’s grandparents. While there was some question as to the success of the grandparents in raising their own children, there was no serious question as to their fitness or that they were reputable people for the purposes of the Act. A more important issue in that case was the welfare of the child where the natural parents and the prospective adoptive parents had a troubled relationship. This difficulty was exacerbated by the misconduct of DCFS in dealing with the grandparents. The appellate court found the abuse of authority by DCFS there had to be corrected and the trial court’s finding was contrary to the manifest weight of the evidence where it had denied the petition of fit parents on the grounds of the best interest of the child. Here, the parents were not found to be fit. This finding is amply supported by the evidence and Smith does not aid the petitioners.

The guardian ad litem in his reply brief cites a more closely analogous case. In In re Petition of Berkowitz (1967), 88 Ill. App. 2d 1, 232 N.E.2d 72, the court found the petitioner was not a reputable person based on his discharge from employment for forging checks payable to his employer and depositing the funds in his own account. In addition to questions concerning the best interests of the child, the court here would be justified in finding the adoptive father was not a reputable person for the purposes of the Act. In an adoption case, the finding of the trial court will not be disturbed on review unless contrary to the manifest weight of the evidence. (In re Adoption of Garrison (1981), 93 Ill. App. 3d 670, 417 N.E.2d 787.) Here the finding of the trial court was not so contrary as to require reversal on review.

Petitioners also argue section 16 of the Act provides for waiver of the six-month waiting period in cases where adoption is granted, but not in cases where adoption is denied. (Ill. Rev. Stat. 1985, ch. 40, par. 1520.) As they note in their brief, the law of adoption is strictly statutory and statutes must be strictly complied with. Therefore, adoption may take place only after six months from the awarding of temporary custody as provided by section 14 of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 1517), or upon waiver of the six-month period. Here, petitioners specifically waived the waiting period and have no grounds to complain where their petition was denied within the six-month period.

The cross-appellant Marianne Doan raises an additional issue in her brief. She contends the trial court erred in failing to find her consent to the adoption of her child was void. In the alternative, she argues her consent was limited to adoption by the Neeses.

This specific question has come before the appellate court on a previous occasion. In In re Custody of Mitchell (1983), 115 Ill. App. 3d 169, 450 N.E .2d 368, the court concluded it was possible for a parent to consent to adoption by a specific party. Section 10 of the Act contains the forms necessary for the natural parents to consent to the adoption of their children. Section 10(A) of the Act is entitled “Final And Irrevocable Consent To Adoption.” (Ill. Rev. Stat. 1985, ch. 40, par. 1512(A).) Section 10(C) of the Act is entitled “Final And Irrevocable Surrender For Purposes Of Adoption.” (Ill. Rev. Stat. 1985, ch. 40, par. 1512(C).) The difference between these two sections is that section 10(C) contains language indicating the child is surrendered to an agency for adoption at the discretion of the agency. Section 10(A) does not contain this language and indicates the parent is giving consent to a specific adoption. See also discussion in Johnson v. Burnett (1989), 182 Ill. App. 3d 574.

The consent form in Mitchell was the same as was used here, section 10(A). There, the trial court, as did the trial court here, held the consent acted as a general surrender for adoption and terminated the parental rights completely. The appellate court reversed. The appellate court noted the parent gave his specific consent to an adoption by known parties and did not make a general surrender to a third party or agency for an adoption. The court held the language of section 10(A), which indicates the parent gives up all parental rights, is necessary to effect a transfer of these rights to the adoptive parents. However, this language cannot be read so broadly that it encompasses a complete termination of parental rights where a proposed adoption by a specified known party is not consummated. In order for the statutory structure of section 10 to have any meaning, section 10(A) must be read to provide for irrevocable consent to a specific adoption only. Any other construction of section 10(A) would render it superfluous.

In this case, it is clear Marianne Doan gave valid consent for the adoption of her daughter by specified known parties. Although the record shows the consent form signed by Doan did not specifically mention the Neeses and she did not conduct any investigation of them, she had met them briefly and had some knowledge of them. When the circuit court denied the Neeses’ petition for adoption, the natural mother’s consent to an irrevocable termination of her parental rights became voidable. For this reason, the trial court erred in denying the natural mother’s petition to void her consent. The consent became voidable at the time the petition for adoption was denied and the mother should have been given the opportunity to regain full parental rights. In the absence of a finding of unfitness or the execution of another consent form, the circuit court should have provided for the return of the child to the natural mother.

As the mother here seeks the return of her child and did so in a timely fashion, we need not address the difficult problems that may arise where the natural parents do not wish the return of the child or where a considerable amount of time may pass between the consent and the denial of the petition for adoption. We affirm the circuit court’s denial of the petition for adoption, but reverse the trial court’s denial of the natural mother’s petition to void her consent. We remand and instruct the circuit court to return custody and full parental rights to the natural mother.

Affirmed in part; reversed in part and remanded with directions.

KNECHT and GREEN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ZERNIAL BOGAN, Defendant-Appellant.
    Fourth District
    No. 4-88-0926
    Opinion filed June 28, 1989.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court;

Defendant was indicted January 21, 1988, on two counts, one count of burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1), a Class 2 felony, and one count charging theft (Ill. Rev. Stat. 1987, ch. 38, pars. 16 — 1(a)(1), (e)(1)), a Class A misdemeanor. Pursuant to the terms of a plea agreement, defendant pleaded guilty to the burglary count and the theft count was nol-prossed. On April 13, 1988, the defendant was sentenced to 24 months’ intensive probation supervision (IPS). On November 2, 1988, a petition to revoke probation was filed, the probation was subsequently revoked, and the defendant was sentenced to four years’ imprisonment with two days’ credit for time spent in jail awaiting sentence, but no credit for any time served on probation.

Defendant appeals from the judgment of the circuit court of Champaign County, arguing (1) the burglary statute under which he was originally sentenced is unconstitutionally overbroad because it criminalizes any entry into an enclosed structure when the entry is committed with the intent to commit a felony or theft; (2) the trial court abused its discretion by failing to sentence him to an additional period of probation, conditioned on jail time and long-term residential drug treatment or, alternatively, by not imposing a three-year minimum sentence; and (3) the court erred by failing to award him at least partial credit for time served on probation prior to revocation.

The defendant did not appeal the original sentence of probation pursuant to the plea of guilty to burglary. On appeal after revocation, defendant for the first time argues the burglary statute is unconstitutionally overbroad because the conduct for which he was convicted could have been charged as lesser offenses. Defendant argues since the conduct which constituted the offense could have been charged as misdemeanor theft, misdemeanor retail theft, or felony burglary, the burglary statute is unconstitutionally overbroad in that it permits the prosecutor, in the exercise of his authority, to determine whether to charge a person with an enhanced offense.

The State contends defendant has waived any such challenge to the statute by not raising it in the trial court. Issues not raised in the trial court may generally be deemed waived, and this includes constitutional issues.

“ ‘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.]’ People v. Brand, 415 Ill. 329, 337; see also People v. Luckey, 42 Ill. 2d 115, Van Meter v. Stout, 45 Ill. 2d 7.” (People v. Amerman (1971), 50 Ill. 2d 196,197, 279 N.E.2d 353, 354.)

(See also People v. Cregar (1988), 172 Ill. App. 3d 807, 826, 526 N.E.2d 1376, 1389 (and cases cited therein); People v. Myers (1989), 181 Ill. App. 3d 769, 771.) Generally, of course, an issue which goes to the underlying conviction should be raised by direct appeal from the conviction, in this case entered on April 13, 1988, rather than when sentencing after revocation, which occurred December 19, 1988. (See In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910 (unless order is void).) And, where a conviction is entered on a guilty plea, the issue should be raised to the trial court’s attention in a motion to withdraw the plea (107 Ill. 2d R. 604). See, e.g., People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.

A clear exception to the waiver doctrine exists, however, where the statutory provision under which a defendant is convicted is found unconstitutional (see, e.g., People v. Bryant (1989), 128 Ill. 2d 448, 453, (and cases cited therein)), in which case the statute is void ab initio. (See, e.g., People v. James (1986), 148 Ill. App. 3d 536, 499 N.E.2d 1036.) In light of our ruling on the merits, we need not decide the waiver issue.

Illinois courts have upheld convictions for burglary based on unauthorized entry into buildings open to the public, where the entry was committed with the purpose to commit a theft. People v. Weaver (1968), 41 Ill. 2d 434, 243 N.E.2d 245, cert. denied (1969), 395 U.S. 959, 23 L. Ed. 2d 746, 89 S. Ct. 2100.

In People v. Drake (1988), 172 Ill. App. 3d 1026, 527 N.E.2d 519, this court upheld a defendant’s conviction of burglary and forgery where he took a stolen check to an Eagle food store and tried to cash it. Defendant was convicted of burglary due to his unauthorized entry into the store with intent to commit a forgery. This court stated: “Defendant did not have authority to enter the grocery store to commit a forgery. He was, therefore, properly convicted of burglary.” Drake, 172 Ill. App. 3d at 1028, 527 N.E.2d at 520.

Contrary to defendant’s argument, the burglary statute is not unconstitutional because it allows prosecutors the discretion to choose whether to charge a defendant with burglary, theft, or retail theft. Similar arguments have been rejected by the supreme court as to the death-penalty statute, argued as unconstitutional because it allows prosecutors “unbridled and arbitrary discretion” in choosing whether to seek the death penalty. In that context, the argument has been rejected on several occasions, and the supreme court concluded that statute satisfies constitutional guarantees. (See, e.g., People v. Brisbon (1989), 129 Ill. 2d 200, 223.) This concept of prosecutorial discretion is not restricted to the death-penalty cases. In People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 539-40, 397 N.E.2d 809, 814, the court stated:

“As the decisions of this court show, the State’s Attorney has always enjoyed a wide discretion in both the initiation and the management of criminal litigation. That discretion includes the decision whether to initiate any prosecution at all, as well as to choose which of several charges shall be brought. See People v. Rhodes (1967), 38 Ill. 2d 389, 396[, 231 N.E.2d 400, 403]; People v. McCollough (1974), 57 Ill. 2d 440[, 313 N.E.2d 462] ***; People v. Brooks (1976), 65 Ill. 2d 343, 349[, 357 N.E.2d 1169, 1172]; People v. Golz (1977), 53 Ill. App. 3d 654, 658, 659[, 368 N.E.2d 1069, 1072] ***; see also Woodard v. Wainwright (5th Cir. 1977), 556 F.2d 781, 784, cert. denied (1978), 434 U.S. 1088, 55 L. Ed. 2d 794, 98 S. Ct. 1285.”

We note that the First District Appellate Court has rejected an argument similar to that posed by the defendant in People v. Crawford (1986), 145 Ill. App. 3d 318, 324-26, 495 N.E.2d 1025, 1029-30, and People v. McGee (1987), 165 Ill. App. 3d 833, 840-41, 520 N.E.2d 836, 840-41. Both the Crawford court and the McGee court looked to the decision in United States v. Batchelder (1979), 442 U.S. 114, 123-24, 60 L. Ed. 2d 755, 764, 99 S. Ct. 2198, 2204, wherein the Court stated:

“[It] has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.”

We conclude the same rationale adheres here. Where criminal conduct might be charged under different statutory provisions with differing penalties, a defendant has no constitutional right to compel his prosecution for the lesser, rather than the greater, offense.

Defendant next argues the trial court abused its discretion in sentencing him to four years’ imprisonment. Defendant had several prior adult convictions. In Champaign County case No. 84 — CF—1584, defendant was convicted of the offense of unlawful possession of a controlled substance and, in 1985, was sentenced to 18 months’ probation. In Champaign County case No. 85 — CF—824, defendant was convicted of the offense of forgery and, in April 1986, was sentenced to a term of 18 months’ probation. Here, a petition to revoke probation was filed, alleging numerous violations. The court found the State had proved by a preponderance of the evidence the curfew violations in paragraph 4, the allegations of paragraph 6 as to failure to perform public service work on May 1 or October 29, and the allegation of paragraph 8 as to failure to keep an appointment with the probation officer on August 31. The court’s findings as to these allegations is not an issue in this appeal.

Prior to the sentencing hearing, defendant was evaluated by the Treatment Alternatives to Street Crime Unit (TASC), but could not elect treatment under the Alcoholism and Substance Abuse Act because his probation officer did not consent to the election. (Ill. Rev. Stat. 1987, ch. 111D/a, par. 6321(e).) At sentencing, defense counsel argued for reimposition of probation under the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1001 — 1—1 et seq.), with conditions including “a sentence of significant incarceration” and that defendant admit himself to long-term residential placement for his drug abuse problem. (See, e.g., Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 6—3(d), (b)(4) (permitting as conditions of probation a period of imprisonment of up to six months and treatment for drug addiction, respectively).) The State argued for imposition of the maximum term of imprisonment permitted by statute for burglary, seven years, and pointed out defendant had previously been placed on probation and then on intensive probation supervision, the latter without success. As to the trial court’s first sentencing order:

“Intensive probation supervision is used for those criminal defendants found guilty of felonies who meet all of the criteria to be sentenced to the penitentiary. It is a specialized program to provide intensive supervision and services to a limited caseload of high-risk, nonviolent felony offenders. It is important the orders of probation be complied with.” People v. Cozad (1987), 158 Ill. App. 3d 664, 670, 511 N.E.2d 211, 216.

The court found the record showed defendant had been afforded opportunities for rehabilitation, but failed to comply with even the simplest requirements of probation. The court concluded the defendant’s history was one of indifference to any attempt to structure his life toward rehabilitation and that he showed complete disregard for any rules and regulations to that end, including while placed in IPS. The trial judge concluded defendant was not likely to be rehabilitated and a sentence to the penitentiary was the appropriate disposition.

After revoking the probation of a defendant, the trial court may sentence him to any disposition which would have been appropriate for the underlying offense. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4(h).) Although the defendant cannot be sentenced upon revocation for the activity which constituted the probation violation, nevertheless, the defendant’s conduct on probation can be utilized by the trial court to assess the defendant’s potential for rehabilitation. People v. Young (1985), 138 Ill. App. 3d 130, 135, 485 N.E.2d 443, 445; People v. Jones (1988), 172 Ill. App. 3d 1048, 1050, 527 N.E.2d 521, 523.

Imposition of sentence is a matter within the purview of the trial court. A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case and depends on many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environments, habits, and age. The trial judge, during the course of proceedings, has an opportunity to consider these factors which is superior to that afforded by the cold record on review. Accordingly, the decision of the trial court as to sentence is entitled to great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) A sentence within the statutory range prescribed for the offense will not be disturbed on review absent an abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 279-80, 412 N.E.2d 541, 547.

Here, the State asked for imposition of the maximum sentence of imprisonment available for the offense of burglary, seven years. The trial court imposed a term of imprisonment one year above the minimum. No abuse of discretion is shown.

Defendant also argues the trial court committed reversible error by failing to award him sentence credit for time spent on probation prior to probation revocation. Here, defendant was placed on IPS on April 13, 1988. The petition to revoke his probation was filed on November 7, 1988, and after hearing on November 18, 1988, the court found the State had proved certain of the alleged violations by a preponderance of the evidence. Section 5 — 6—4(h) of the Code, pertaining to resentencing after revocation of probation, provides in pertinent part:

“Time served on probation, conditional discharge or supervision shall not be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—4(h).)

Under section 5 — 6—4, it is well recognized that the trial court has broad discretion in choosing to grant or refuse credit for time served on probation. The determination of the trial judge will not be disturbed on appeal absent an abuse of discretion. (See People v. Chumbley (1982), 106 Ill. App. 3d 72, 76, 435 N.E.2d 811, 814 (and cases cited therein); People v. Horton (1987), 160 Ill. App. 3d 513, 515, 513 N.E.2d 502, 505-06; see also People v. Cozad (1987), 158 Ill. App. 3d 664, 511 N.E.2d 211, cert. denied (1988), 485 U.S. 964, 99 L. Ed. 2d 432, 108 S. Ct. 1233.) The constraints of liberty imposed under either probation or IPS cannot be equated to the constraints of imprisonment and no abuse of discretion was demonstrated here.

Accordingly, for the reasons herein stated, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE CALLAWAY, Defendant-Appellant.
    Fourth District
    No. 4-88-0622
    Opinion filed June 30, 1989.
    Rehearing denied July 27, 1989.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and James Overholt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial, defendant was convicted of nine counts of narcotics-related offenses. Seven counts involved the unlawful delivery of small amounts of cocaine. Because defendant’s illegal activities overlapped a change in the statute pertaining to unlawful delivery of cocaine, five counts were in violation of section 401(c) of the Illinois Controlled Substances Act (Ill. Rev. Stat., 1986 Supp., ch. 56V2, par. 1401(c)) (Class 2 felony), and two counts were in violation of section 401(b)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 561k, par. 1401(b)(2)) (Class 1 felony). Defendant was also convicted of one count of unlawful delivery of cannabis, in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 56V2, par. 705(d)) (Class 3 felony), and one count of narcotics racketeering, in violation of section 4(a) of the Narcotics Profit Forfeiture Act (Ill. Rev. Stat. 1987, ch. 56V2, pars. 1654(a), 1655(a)) (Class 1 felony). The circuit court of Adams County sentenced defendant to the following concurrent terms of imprisonment: (a) four years for the Class 3 felony; (b) five years for the Class 2 felonies; and (c) eight years for the Class 1 felonies. In addition, defendant was ordered to pay fines. Defendant appeals his convictions and sentences.

On appeal, defendant raises the following allegations of error: (1) the court erred in allowing the State to adduce and argue that the drug dealers defendant supplied with drugs pleaded guilty or were convicted by a jury of the same offenses for which defendant was now on trial; (2) the court should have vacated the eight convictions for unlawful delivery of cocaine and cannabis because these predicate convictions for unlawful delivery of narcotics are included offenses of narcotics racketeering; (3) the trial court abused its discretion in denying defendant’s motion for severance of the charges; and (4) the prosecutor committed error during his open statement and closing argument. The pertinent facts follow.

The State charged defendant with operating a scheme whereby he profited from the sale of illegal drugs, and from acting as an informant for law enforcement authorities concerning the same drug sales. In so doing, defendant allegedly deceived friends of his into selling narcotics for him, and deceived undercover law officers into believing the friends were notorious drug dealers. The scheme was not discovered until defendant had fled to Texas.

The scheme took the following pattern. Defendant would ask a friend to sell drugs to a third person, usually described by defendant as his cousin from out of town. Each testified defendant told him he did not want his cousin to know he was a dealer. Defendant supplied the drugs and returned after the sale to collect the money, between $100 and $300 per transaction. In the meantime, defendant had made arrangements with local narcotics investigators to act as an informant concerning illegal drug sales. The individual purporting to be defendant’s cousin was, in fact, an undercover law officer. For each drug transaction arranged by defendant, he would receive a fee from the government of $35 to $50, depending on the type of drug involved. The incidents in question took place during the months of January and February 1987. Five of defendant’s friends were later arrested and pleaded guilty, or were convicted by a jury of selling illegal narcotics.

Defendant was eventually arrested and indicted for his participation in these same drug transactions. Following trial, defendant was convicted of eight counts of unlawful delivery of narcotics and one count of narcotics racketeering.

Defendant first argues the State improperly introduced evidence that the principal witnesses, the friends of defendant set up to be drug dealers, pleaded guilty or were convicted of the same offenses for which defendant was on trial. Further, defendant contends the State’s Attorney referred to this evidence as a reason for finding defendant guilty in closing argument. The State responds by arguing the circumstances of this case are unique and do not fit under the normal prohibition against evidence of a codefendant’s conviction.

In total, five of defendant’s friends testified that defendant set them up as drug dealers. The jury acquitted defendant of the charges pertaining to one of the individuals, and his testimony will not be discussed. The direct examination of three of the remaining four witnesses was conducted in similar fashion. The pertinent testimony of Kimberly West Page is reproduced as an example:

“Q. Okay. Do you have some felony convictions?
A. Yes.
Q. And can you tell the ladies and gentlemen what those are?
A. Two counts of controlled substance.
Q. Okay, and is that controlled substance cocaine?
A. Yes.
Q. Do you know the person who gave you the drugs that you were convicted for?
A. Yes.
Q. And who was that person?
A. Joe Callaway.
Q. Is he here in the courtroom?
A. Yes.
Q. Would you point him out for us, please.
* * *
Q. The two convictions that you have for selling drugs, did the first one occur on or about January 20th of 1987?
A. Yes, it did.
Q. How did you happen to sell drugs on' January 20th of 1987?
A. Joe came over about 3:00, 3:30 and asked me if I would sell something for him to his cousin, which was Gerald Kempf.
Q. Did you know that the name — of the name Gerald Kempf at that time?
A. No. I knew him as his cousin.
Q. You didn’t know that he was a state police officer?
A. No, I did not.
Q. Okay. What did Mr. Callaway tell you to do?
A. He came to the house and dropped the stuff off and told me that it was $150 and that he would be back in a little bit with his cousin because he didn’t want his cousin knowing he was dealing drugs.”

Each witness then went on to describe the drug transactions in detail: how defendant arranged them; how they occurred; and how defendant returned afterwards for his money.

The testimony of Beth Alexander Owens differed in that she did not plead guilty. She went to trial and was convicted on one count of unlawful delivery of cocaine. She was originally charged with three counts of narcotics violations: two counts of unlawful delivery of cocaine and one count of narcotics racketeering. In her testimony, Owens described two incidents where defendant arranged for her to sell cocaine to Sergeant Gerald Kempf. In the first instance, defendant promised her $25 for selling the cocaine for him. However, when defendant returned following the transaction, he did not leave her any money. Owens stated this was the count for which she was not convicted. The implication was that she was not convicted because she did not receive any money. In the second instance, she demanded a portion of the money be paid to her prior to the sale. In total, she received $25 from defendant for her part in this transaction. She was convicted on this count.

The State’s Attorney mentioned the testimony of Owens in his closing argument. In particular, the State’s Attorney argued the following with regard to Owens’ jury trial:

“Going back just a second to Beth Alexander Owens. Remember how she testified that she had a jury trial and that she was found not guilty on Count I and that was the count that she didn’t get any money for? She was found guilty on Count II, and that was the count that she wanted her money up front, so she clearly knew what she was doing. She got money for the transaction. She knew it was cocaine. Count III she was found not guilty on. That was narcotics racketeering. Well, as you will see, the definition of narcotics racketeering requires two or more transactions, and since she was only found guilty of one transaction, it only follows that she will be found not guilty of narcotics racketeering.
That brings up another point. You might think, well, if she is not guilty of Count I because she didn’t get any money out of it, then why is the Defendant, Joe Callaway, guilty? Well, the Judge will also help you out with that because there is another instruction that says that when you are an accomplice or legally accountable for another — and, again, this is not the exact words — but it goes on to say it doesn’t matter whether the other person was found guilty or not guilty or not charged or not prosecuted. So the fact that Beth Owens was found not guilty of her Count I, which in this case turns out to be Count X against Joe Callaway, that is not a basis for finding him not guilty of that count. As a matter of fact, it is a basis for finding him guilty. I submit the reason she was found not guilty is she didn’t get any money out of it.
MR. ADRIAN: Objection, your Honor.
THE COURT: Sustained.”

Evidence that a codefendant or accomplice has pleaded guilty or has been convicted of the same offense is inadmissible at trial for purposes of proving the guilt of a defendant. However, such evidence is admissible for impeachment purposes. (People v. Sullivan (1978), 72 Ill. 2d 36, 42, 377 N.E.2d 17, 20.) Defendant argues the instant case is similar to the facts in Sullivan, and that reversible error occurred because of the introduction of the accomplice’s convictions and the closing argument of the State’s Attorney.

In Sullivan, defendant was on trial for an armed robbery committed by three men. The two other codefendants had pleaded guilty. The prosecutor called both codefendants and attempted to have them testify concerning the crime. This was largely unsuccessful. The prosecutor did, however, emphasize the convictions of the codefendants in opening and closing arguments. In opening argument, the prosecutor stated:

“ ‘We also, I believe, will have the opportunity of hearing from the other two convicted armed robbers in this same instance, Clarence Armstrong and Albert Matthews, as to their being brought here this afternoon to testify what they know about Mr. Sullivan’s participation in this act.’ ” (Sullivan, 72 Ill. 2d at 39, 377 N.E.2d at 19.)

In closing argument, the prosecutor stated:

“ ‘[Defendant], just as Mr. Matthews did and just as Mr. Armstrong had a part in it, they all had their own individual role to play in this armed robbery.
Now, what about those two others? They both pleaded guilty to the same charge. They’re both in Menard. They both were brought up here today, as you could tell, rather reluctantly. They were called to the stand and didn’t want to testify, particularly Mr. Matthews. *** * * *
Now, if you think [defendant] was innocent, why was he with those two guys that are in prison now who pled guilty to armed robbery? * * *
Now, common sense will tell you, reason will tell you that [defendant is] just as guilty as the other two, because he was in there. He had the money. * * *
[Although it’s a circumstantial case you can’t help but find that he’s guilty of armed robbery, just like his two friends, in spite of their effort to help him by their reticence and their code of honor whatever you want to call it.’ ” (Sullivan, 72 Ill. 2d at 40, 377 N.E.2d at 19.)

Later, in his rebuttal argument, the prosecutor added:

“ ‘[Defendant is] really clever. He’s been around, and he’s dangerous, he’s just as guilty of armed robbery as any of the other two that have already pled guilty.’ ” (Sullivan, 72 Ill. 2d at 41, 377 N.E.2d at 19.)

The supreme court found the prosecutor’s closing argument extremely prejudicial and reversed the defendant’s conviction.

In response, the State argues the instant case is a unique factual situation which does not fit within the general prohibition found in Sullivan. The State argues this case is more similar to the facts in People v. Baker (1959), 16 Ill. 2d 364, 158 N.E.2d 1, a case distinguished by the supreme court in Sullivan. In Baker, the codefendant was the State’s primary witness and testified at length concerning the crime. He also testified that he had previously confessed to the crime, had pleaded guilty, and was awaiting sentencing. On appeal, the defendant argued the admission of testimony that the codefendant confessed was prejudicial. However, the court found no error because the confession itself was not admitted and the codefendant did not testify that the confession implicated defendant. Further, there was no prejudice concerning the fact of the confession because the codefendant fully testified concerning the crime, including the codefendant’s participation. (Baker, 16 Ill. 2d at 372-73, 158 N.E.2d at 6.) The State argues the instant case is similar to Baker in that four accomplices described their full and complete participation in the drug transactions.

We believe the facts in this case present a unique scenario not contemplated within the general prohibition against evidence of a co-defendant’s conviction. While each accomplice testified to a conviction for unlawful delivery, each also gave complete statements concerning the transactions, including details of defendant’s participation. The factual situation was unique in that the witnesses alleged defendant set them up to be convicted by arranging for sales to undercover police officers. Once the transactions were complete, defendant abandoned his so-called friends to their fate, which for these individuals meant criminal convictions for unlawful delivery of narcotics. In their testimony, these convicted drug dealers were simply testifying as to the identity of their drug supplier. The jury was entitled to know the full extent of defendant’s scheme.

The closing argument of the State’s Attorney was not outrageous like that of the prosecutor in Sullivan. We find no reversible error in the closing argument.

Defendant next argues the eight convictions for specific, illegal narcotics sales should have been vacated as they were included offenses of narcotics racketeering. Defendant was convicted of nine narcotics related offenses. He was convicted of seven counts of unlawful delivery of cocaine and one count of unlawful delivery of cannabis. The ninth conviction was for narcotics racketeering. Section 4(a) of the Narcotics Profit Forfeiture Act (Act) (Ill. Rev. Stat. 1987, ch. 56V2, par. 1654(a)) defines the particular racketeering offense for which defendant was convicted:

“A person commits narcotics racketeering when he:
(a) Receives income knowing such income to be derived, directly or indirectly, from a pattern of narcotics activity in which he participated, or for which he is accountable under Section 5 — 2 of the Criminal Code of 1961.”
“Pattern of narcotics activity” is defined in section 3(b) of the Act (Ill. Rev. Stat. 1987, ch. h&k, par. 1653(b)):
“ ‘Pattern of narcotics activity’ means 2 or more acts of narcotics activity of which at least 2 such acts were committed within 5 years of each other. At least one of those acts of narcotics activity must have been committed after the effective date of this Act and at least one of such acts shall be or shall have been punishable as a Class X, Class 1 or. Class 2 felony.”

Count XII of the indictment charged defendant with narcotics racketeering. The charge was based on all of the other specific narcotics violations for which defendant was on trial. In addition, the jury was instructed that in order to find defendant guilty of narcotics racketeering, they must find him guilty of two or more of the other narcotics charges. Defendant was acquitted on counts VIII and IX, and the State dismissed count V. Therefore, defendant was convicted of eight counts of unlawful delivery of illegal narcotics.

Defendant argues that based on the manner in which count XII was pleaded, and the evidence used to support the charge, the eight unlawful delivery convictions were included offenses of the narcotics racketeering charge. Multiple convictions must be vacated in two instances: (1) when they are based on the same physical act, or (2) when one is an included offense of the other. (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45; People v. Wieland (1984), 123 Ill. App. 3d 576, 584, 462 N.E.2d 1256, 1262.) Section 2-9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 9) defines an included offense, and states, in part:

“ ‘Included offense’ means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.”

In People v. Mays (1982), 91 Ill. 2d 251, 255, 437 N.E.2d 633, 635, the supreme court stated that one of the approved tests for determining whether a particular offense is an included offense of another is to examine the greater crime as it is alleged in the indictment. Because the charge of narcotics racketeering specifically relied on the other charged offenses for support, defendant argues the other eight narcotics violations are included offenses.

In response, the State relies on the interpretation given by the Federal courts to the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C.A. §§1961 through 1968 (West 1984 & Supp. 1989)). There is evidence that the Illinois legislature patterned the Act (Ill. Rev. Stat. 1987, ch. 561lz, pars. 1651 through 1660) after the Federal RICO statute. (See 82d Ill. Gen. Assem., House Proceedings, May 20, 1982, at 326 (statements of Representative Daniels).) In particular, the State cites to two Federal cases where the courts found narcotics-related offenses different from RICO-based offenses such that separate convictions and sentences were permissible. United States v. Thomas (2d Cir. 1985), 757 F.2d 1359; United States v. Boldin (11th Cir. 1985), 772 F.2d 719.

In Thomas, the court of appeals held that the Federal offense of conspiracy to violate narcotics laws (see 21 U.S.C.A. §846 (West Supp. 1989)) was not an included offense of conspiracy to violate the RICO statute. The court applied a three-step test in order to arrive at its conclusion. (Thomas, 757 F.2d at 1371.) In step one, the court examined the language of these statutory provisions. The offenses were located in two different statutes, each statute unambiguously authorizing punishment for violation of its terms. Under this portion of the test, the court noted the Federal statutes were intended to deter two different kinds of activity: narcotics violations on the one hand, and racketeering on the other. The second step of the analysis involved a close examination of the elements of the two offenses in question:

“In order to ascertain whether the offenses in question are in fact separate [citations], we turn to the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932):
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Id. at 304, 52 S. Ct. at 182.” (Thomas, 757 F.2d at 1371.)

In applying this test, the court noted that it was. examining the language of the statute, and not the specific allegations made against the defendants. The court then examined the two different statutes and found one element in each that was distinct:

“A [RICO] conspiracy requires proof of the existence of an ‘enterprise’ engaged in a ‘pattern of racketeering activity’; a Section 846 conspiracy does not. Section 846 requires proof of a narcotics related conspiracy; a RICO conspiracy charge is satisfied by proof of an agreement to commit a felony, no proof of conspiracy to commit narcotics violations is necessary. Thus, each offense requires proof of a fact that the other does not, and the Blockburger test is satisfied.” (Thomas, 757 F.2d at 1371.)

The third step of the test was to examine the legislative history in order to determine if there was any indication that Congress did not intend to impose multiple punishments for the two separate offenses. Because the legislative history was silent on the matter, the court found there was no contrary indication.

In Boldin, the second Federal case, the court of appeals held that the Federal offense of possession with intent to distribute (21 U.S.C.A. §841(a)(1) (West 1981)) was not an included offense of a substantive RICO violation. The court applied the same three-step test used in Thomas. Under step two of the test, which utilizes the Block-burger rule, the court simply concluded “the two groups of offenses are sufficiently different and distinguishable.” (Boldin, 772 F.2d at 729.) Based on Thomas and Boldin, the State argues the concept of an included offense does not apply to the instant case. The State particularly emphasizes the purposes of the statutes involved. The unlawful delivery offenses are aimed at deterring specific narcotics violations. The narcotics racketeering statute is aimed at deterring racketeering activities.

A serious question arises as to whether the analysis used by the Federal courts should be adopted in the instant case. In Mays, our supreme court discussed the methods of determining whether one offense is an included offense of another:

“The definition of ‘included offense’ does not indicate which of the following is determinative in deciding if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial. In People v. Cramer [(1981), 85 Ill. 2d 92, 421 N.E.2d 189,] this court recently approved the use of the second test, while at the same time pointing out that the first test was seldom used and expressing no opinion on the propriety of the third test.” (Mays, 91 Ill. 2d at 255, 437 N.E.2d at 635.)

The court in Mays then found that the result would be the same in that case using any of the three tests. Similarly, we conclude that using any of the three tests to examine the instant case, the result is the same. The unlawful delivery offenses are included offenses of narcotics racketeering.

The Federal analysis was based on an examination of the general language of the pertinent statutes. This is the first test under Mays. However, we note that the court of appeals in Thomas made the critical distinction based on the conspiracy language, and not the language of the substantive offenses. An examination of the language of the Act leads to the conclusion that other narcotics offenses are included offenses. Narcotics racketeering occurs when an individual derives income “from a pattern of narcotics activity.” (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1654(a).) “Pattern of narcotics activity” is defined as “2 or more acts of narcotics activity.” (Ill. Rev. Stat. 1987, ch. 56V2, par. 1653(b).) “Narcotics activity” is defined, in pertinent part, as “[a]ny conduct punishable as a felony under the Cannabis Control Act or the Illinois Controlled Substances Act.” (Ill. Rev. Stat. 1987, ch. 56V2, par. 1653(a)(1).) Therefore, by definition, all of the elements of unlawful delivery of illegal narcotics are included within the offense of narcotics racketeering.

We reach the same result under the second and third tests described in Mays. The narcotics racketeering charge as pleaded in the indictment encompassed all of the elements of the unlawful delivery charges. The evidence used to prove the unlawful delivery charges constituted the evidence used to prove the narcotics racketeering charge. Because of our conclusion here, we vacate the seven convictions for unlawful delivery of cocaine and the conviction for unlawful delivery of cannabis, along with the corresponding sentences. Defendant retains a conviction and sentence for narcotics racketeering.

Defendant’s third argument is that the trial court abused its discretion in denying his motion for severance of the charges. Defendant filed a pretrial motion requesting separate trials on the charges against him. The court denied the motion. A decision on whether or not to sever is a matter within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. (People v. Mikel (1979), 73 Ill. App. 3d 21, 27, 391 N.E.2d 550, 555.) The charge of narcotics racketeering was based on the other counts of specific narcotics transactions. Thus, all of the evidence was relevant to prove defendant engaged in “a pattern of narcotics activity.” (Ill. Rev. Stat. 1987, ch. 56V2, par. 1654(a).) The trial court did not abuse its discretion in denying defendant’s motion to sever.

Finally, defendant argues the State’s Attorney made other serious errors in his opening statement and closing argument. However, defendant failed to properly object to these alleged errors, and he has, therefore, failed to preserve these errors for review. (People v. Carraro (1979), 77 Ill. 2d 75, 81, 394 N.E.2d 1194, 1196-97.) We find these arguments waived.

For the reasons stated above, the order of the circuit court of Adams County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

McCULLOUGH, EL, and GREEN, J., concur.


author: JUSTICE KNECHT

text:
    PHYLLIS M. HOWARD, Plaintiff-Appellee, v. ROBERT D. FORBES, Indiv. and as Supervisor of Normal Township, et al., Defendants-Appellees (The Department of Employment Security, Appellant).
    Fourth District
    No. 4-88-0549
    Opinion filed June 8, 1989.
    Modified on denial of rehearing July 26, 1989.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellant.
    James R. Carter and Cathy A. Stephens, both of Hafele, Thiemann & Associates, of Peoria, for appellee Phyllis Howard.
   JUSTICE KNECHT

delivered the opinion of the court:

On October 27, 1988, the plaintiff filed a wrongful discharge action against her former employer, Normal Township, its supervisor, Robert D. Forbes, and its trustees, Wallis Norris, Robert L. Rhine-hart, Ronald L. Pacha, and Cushman Skinner. As part of discovery in the action, the plaintiff served the Department of Employment Security (Department) with a subpoena duces tecum for production of her unemployment insurance benefit claim records on December 7, 1987. The Department resisted the subpoena duces tecum on the basis the requested records constituted confidential information privileged from production under the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 640). The plaintiff then filed a motion to order production of the records on January 4, 1988. After hearing on March 11, 1988, the McLean County circuit court ordered the Department to produce the requested records as the plaintiff had waived the statutory privilege with the subpoena duces tecum for her unemployment insurance benefit claim records in litigation regarding discharge from employment. On June 28, 1988, pursuant to a stipulation agreement for the purpose of appeal, the circuit court entered a citation of contempt against the Department with a concomitant stay over its enforcement. The Department now appeals from the order of production and the citation of contempt.

The sole issue presented on appeal is whether the statutory privilege of confidentiality of information under the Act (Ill. Rev. Stat. 1987, ch. 48, par. 640) is waived when a claimant subpoenas her unemployment insurance benefit claim records in litigation regarding discharge from employment. We affirm.

Initially, we note a citation of contempt is an appropriate method for testing the propriety of an order of production at discovery. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 189, 226 N.E.2d 6, 12.) This testing method protects a party claiming privilege from production based on confidential information. (Illinois Educational Labor Relations Board v. Homer Community Consolidated School District No. 208 (1987), 160 Ill. App. 3d 730, 741, 514 N.E.2d 465, 472.) The protection afforded to such a party is not absolute. Absent an impropriety in the underlying order of production at discovery, the appellate court will not reverse a citation of contempt. Bauter v. Reding (1979), 68 Ill. App. 3d 171, 174, 385 N.E.2d 886, 889.

Resolution of the issue presented on appeal depends on interpretation of the statutory privilege of confidentiality of information under the Act (Ill. Rev. Stat. 1987, ch. 48, par. 640). The Act provides in pertinent part:

“Disclosure of information — Privileged communications. Except as is hereinafter provided in this Section, information obtained from any individual or employing unit pursuant to the administration of this Act shall be confidential and shall not be published or be open to public inspection, nor be used in any court in any action or proceeding pending therein, nor be admissible in evidence in any action or proceeding other than one arising out of the provisions of this Act. An individual or his duly authorized agent may be supplied with information from such records to the extent necessary for the proper presentation of his claim for benefits or with his then existing or prospective rights to benefits ***. Any officer or employee of the State who, except with authority of the Director pursuant to this Section, shall disclose the same shall be guilty of a Class B misdemeanor; and shall thereafter be disqualified from holding any appointment or employment with the State. * * *
All letters, reports, communications, or any other matters, either oral or written, from an employer or his workers to each other, or to the Director or any of his agents, representatives, or employees, which shall have been written or made in connection with the requirements and administration of this Act or the regulations thereunder, shall be absolutely privileged and shall not be made the subject matter or basis for any suit for slander or libel in any court of this State, unless the same be false in fact and malicious in intent.” Ill. Rev. Stat. 1987, ch. 48, par. 640.

The tenets of statutory interpretation are well settled. The primary tenet is to ascertain and to effectuate the intent of the legislature as expressed in the statute. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277, 469 N.E.2d 167, 171.) In determining such intent, the statute is to be considered in its entirety. (People v. Jordan (1984), 103 Ill. 2d 192, 206, 469 N.E.2d 569, 576.) Where the statute is clear and unambiguous, a court must enforce the statute as enacted without resorting to other interpretation tenets. Logston, 103 Ill. 2d at 277, 469 N.E.2d at 171.

The purpose of the Act is “to provide compensation benefits to [the unemployed] in order to alleviate their economic distress that was occasioned by involuntary unemployment.” (Burke v. Board of Review (1985), 132 Ill. App. 3d 1094, 1099, 477 N.E.2d 1351, 1355; see Ill. Rev. Stat. 1987, ch. 48, par. 300.) Given such a purpose, the Act is remedial legislation. As remedial legislation, the Act must be liberally interpreted for the benefit of the unemployed. Zehender & Factor, Inc. v. Murphy (1944), 386 Ill. 258, 263, 53 N.E.2d 944, 947.

The courts of Illinois have had occasion to interpret the statutory privilege of confidentiality of information under the Act in only three cases: Smith v. Illinois Valley Ice Cream Co. (1959), 20 Ill. App. 2d 312, 156 N.E.2d 361, People v. Ellis (1984), 128 Ill. App. 3d 180, 470 N.E.2d 524, and McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 481 N.E.2d 787. These cases are instructive as to the fact the statutory privilege of confidentiality of information under the Act has been deemed to be clear and unambiguous. Accordingly, the court must enforce the statutory privilege as enacted without resorting to other interpretation tenets. Logston, 103 Ill. 2d at 277, 469 N.E.2d at 171.

“The creation of a statutory privilege is a legislative balancing between relationships on the one hand, which society thinks should be fostered through the shield of confidentiality, and the interests, on the other, served by disclosure of the information in a court of law.” (In re Westland (1976), 48 Ill. App. 3d 172, 176-77, 362 N.E.2d 1153, 1156.) It would seem logical that such a privilege should be invoked only by a party with a direct, legitimate, and personal interest in preserving the confidentiality of the requested information. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §501, at 199-200 (4th ed. 1984).) Given this premise, and the express purpose of the Act, the legislature must have intended the statutory privilege of confidentiality of information to benefit the claimant. Any other interpretation would elevate form over substance.

Nonetheless, the Department contends such an interpretation will compromise the open exchange of information in the unemployment insurance system. We find this contention to be without merit. The subpoena duces tecum of the plaintiff is limited in its scope. The plaintiff requests only copies of the filings of the parties and the transcripts of the proceedings. We also note the defendants do not appear to object to disclosure of the requested records. Given the limited scope of the information sought and the lack of objection on the part of the defendants, the contention of the Department must fail.

The orders of the McLean County circuit court are affirmed.

Affirmed.

McCULLOUGH, P.J., and SPITZ, J., concur.

Modified On Denial Of Rehearing

The circuit court’s judgment should be vacated insofar as it held the Department of Employment Security in contempt of court. The parties stipulated the contempt order was a formal one since the motivation for the refusal to comply with the subpoena duces tecum was solely to permit appellate review of the question presented. Accordingly, the technical finding of contempt and the $50 fine entered upon that judgment are vacated. In all other regards, the judgment of the circuit court is affirmed.

Affirmed in part; vacated in part.

McCULLOUGH, P.J„ and SPITZ, J., concur.


author: PRESIDING JUSTICE McCULLOUGH JUSTICE LUND,

text:
    GEORGE WARD, Plaintiff-Appellant, v. K MART CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4-88-0844
    Opinion filed June 21, 1989.

      LUND, J., dissenting.
    Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and Jeffrey W. Tock, of counsel), for appellant.
    Law Offices of Robert P. Moore, P.C., of Champaign, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

In this case we must determine whether a department store has a duty to warn its customers of the existence of concrete posts located just outside a customer entrance to the store or to remove such posts, in order to prevent customers from colliding with them when they are carrying large, bulky items of merchandise from the store. We hold that no such duty exists and affirm the judgment n.o.v. which the circuit court entered in defendant’s favor.

In his complaint, plaintiff George Ward alleged that on October 11, 1985, he was present as a customer on the premises of a store in Champaign operated by defendant K mart Corporation. Plaintiff alleged that at the relevant time, defendant breached its duty of ordinary care for his safety by committing one or more of the following negligent acts or omissions:

“(a) The customer exit at the northeast corner of the K Mart facility does not open automatically for exiting customers.
(b) The customer exit at the northeast corner of the K Mart facility has a pneumatic closing device which causes the door to close automatically and thereby impede the exit of customers with packages.
(c) The customer exit at the northeast corner of the K Mart facility does not have a window.
(d) There is no warning in the vicinity of the customer exit for the customer to step down to the parking surface upon exiting the door.
(e) There are posts located in close proximity to the customer exit in the northeast comer of the K Mart facility that:
1. impede the exit of customers; and,
2. are below eye level and cannot be seen if a customer’s downward vision is obstructed by packages.
(f) There are no warnings in the vicinity of the customer exit in the northeast corner of the K Mart facility which indicate the presence of posts outside the exit.”

Plaintiff alleged that as a direct and proximate result of one or more of the above acts and omissions, he forcibly collided with a concrete-filled metal pipe as he exited the above-mentioned door while carrying a full-length mirror. Plaintiff alleged that as a result of this collision, he sustained a facial laceration and injuries to his right eye. Plaintiff subsequently amended his complaint to allege K mart negligently placed steel posts in front of a customer exit door and that the door was constructed with a step of such a height that it created a tripping hazard. Plaintiff further alleged that as a result of his collision with the post, he suffered a head trauma which resulted in severe and recurrent headaches.

In its answer, defendant admitted that it placed steel posts in the vicinity of a customer exit door. It denied, however, that it was negligent in doing so and denied it breached any duty which it owed plaintiff. As an affirmative defense, K mart alleged negligence on the part of plaintiff which contributed in the whole or in part to the injuries of which he complained.

At trial, plaintiff presented testimony of medical experts to the effect that to a reasonable degree of medical certainty, the vision problems and headaches from which he suffers were probably caused by the October 11, 1985, accident at the K mart store. Plaintiff also presented the testimony of his wife, Gwendolyn G. Ward, concerning his medical problems since the accident at the K mart store and the embarrassment caused plaintiff by a scar on his left cheek which is attributable to the laceration which plaintiff sustained in the accident.

Testifying on his own behalf, plaintiff stated that he is 59 years old and is a self-employed parking lot designer and line striper. He had done work on the parking area of the K mart store at which he collided with the post, but had not done any work in the area of the door at which the mishap occurred. The plaintiff testified that on October 11, 1985, he went to a K mart store in Champaign in order to purchase a full-length bathroom mirror. He parked on the rear (east) side of the store and entered through a small pedestrian door located next to a large overhead door similar to a garage door. Plaintiff did not recall using that door on previous occasions, although there was a possibility that he may have done so.

The mirror which plaintiff purchased on that day was 5 feet long and perhaps IV2 feet wide. The mirror was in a cardboard holder, but the face of the mirror was not covered.

Plaintiff completed his purchase of the mirror about one-half hour after he entered the store. He was not in any particular hurry on that day. After plaintiff paid for the mirror, a store clerk released a security lock, which permitted customers to exit the store through the door by which plaintiff had entered. (The door is apparently designed so that customers may freely enter through it during business hours, but as a shoplifting prevention measure, a security lock must be released in order for customers to exit through the door.) Plaintiff was carrying the mirror with both hands in a vertical position when he left the store, “because I couldn’t get through the door with it sideways.” According to plaintiff, he put his left shoulder to the door, turned and walked out of the store. After taking a half to a full step outside the door, he “just saw stars and [felt] a — a bad pain, and then some stars. That was the last that I recall.”

Plaintiff testified that the object with which he collided while exiting the store was a large post located close to the doorknob side of the pedestrian door. There is a similar post on the opposite side of the door. Plaintiff was not warned, by means of signs or otherwise, of the existence of the posts before he exited.

The door to the K mart store which plaintiff used on the day he was injured is 36 inches wide, and the posts on the sides of the door are also 36 inches apart. Both posts are located 19 inches from the building. When the door is opened to a position where its edge is nearest the post with which plaintiff collided, the door is four inches from the post. The posts are five feet four inches high. On the date of plaintiff’s accident, both posts were painted dark brown. When leaving the store through the door in question, one must step down six inches.

The following exchange occurred concerning plaintiff’s perception of the posts when he entered the store:

“Q. Did you see the posts as you entered?
A. Yes, sir. I mean they were there. Subconsciously, I guess — they were there when I went out, so, evidently, they were there when I went in.
Q. Did you make a mental note of the presence and existence of the posts as you went in?
* * *
A. Yes. I guess. I don’t know. I mean — they were there. I just don’t — .”

Plaintiff stated that as he exited the store, he had no recollection of the existence of the posts.

As a result of his collision with the concrete post, plaintiff sustained a cut to his right cheek, and immediately after the incident, he could not see out of his right eye. Part of the vision in plaintiff’s right eye has since returned, but the center vision in that eye is still obscured. Since the accident at the K mart store, plaintiff has regularly experienced severe headaches of a kind which he did not experience before the accident.

At the conclusion of his direct testimony, plaintiff stated that during the course of his work on parking lots (he has been involved in the construction of approximately 500 parking lots), he has never seen posts positioned in proximity to a pedestrian door similar to those at the K mart store at which he was injured.

On cross-examination, plaintiff stated that he usually enters the parking lot of the K mart store at which he was injured through the back way. He stated he experienced no difficulty in carrying the mirror which he purchased and requested no assistance in carrying it. When he left the cash register, plaintiff carried the mirror “[k]ind of to the side” and did not have it in front of his eyes. Plaintiff testified as follows concerning his encounter with the posts when he entered the store:

“Q. And you noticed these posts when you went inside, did you not?
A. Subconsciously.
Q. Well, would it be fair to say that you noticed them more or less, Yes?
A. More or less. Yes, sir.
Q. You didn’t have trouble getting around those posts on the way in, did you, sir?
A. Not that I recall.”

Plaintiff acknowledged that if the door had been fully open, he could have walked directly between the two posts. He also testified that he did not stumble when he started out through the door. Plaintiff admitted that the mirror blocked his view as he exited the store. He further stated that first the mirror, and then his head and face struck the concrete post.

On redirect examination, plaintiff stated that when he patronizes the K mart store at which he was injured, he normally parks on the front or west side of the store, and that the door from which he exited on the day he was injured is on the east side of the store. He further testified that the door stayed against his shoulder as .he was pushing it open.

In K mart’s answers to plaintiff’s interrogatories which plaintiff introduced into evidence, K mart admitted that in 1979, it authorized installation of the steel posts by the door at which plaintiff was injured.

Kevin Entires, who on October 11, 1985, was employed in the home improvement center of the K mart store at which plaintiff was injured, testified on defendant’s behalf. Entires stated that on any given day, the number of people who would use the door at which plaintiff was injured varied from 1 or 2 to 50. He stated that “for the most part, anybody buying large building materials, such as plywood, would use that back door, provided that they were aware of it.”

Entires testified that as plaintiff left the cash register after purchasing the mirror, he was carrying it in a vertical position “above his eye sight” and “had it to one side, evidently so he could see.” According to Entires, plaintiff did not request assistance with the mirror. Entires observed plaintiff until he stepped from the door onto the surface of the parking lot. Shortly thereafter, Entires heard a mirror break and saw a portion of one plaintiff’s legs slipping out of the door opening. Entires went outside through the large garage-type door and saw plaintiff standing seven or eight feet from the closest portion of the door. Plaintiff said he was okay, but seemed somewhat in a daze. Entires observed a cut on one of plaintiff’s cheeks, and another store employee began giving him first aid. Entires then called for the store manager and store security. Somewhat later, Entires heard plaintiff tell John Scott, the employee who gave him first aid, that he felt embarrassed and stupid. Up until October 11, 1985, Entires had never seen anyone injured as a result of using the door through which plaintiff exited.

Entires recalled that the mirror which plaintiff purchased was packaged in a cardboard wrapper, which fully covered its back and edges, and that possibly a carrying handle was built into one side of the cardboard, so that the mirror could be carried vertically. Entires felt that one carrying the mirror by the handle could have reached for the door, opened it and exited through it. Entires had seen people brush up against the posts located by the door through which plaintiff exited, but had never seen anyone hurt while going through that door.

On cross-examination, Entires stated that the nearby garage-type door was closed when plaintiff was injured. Entires further stated that when plaintiff exited the store, the door which he used was fully opened to the point where it was about perpendicular to the wall. When Endres first saw plaintiff outside of the door after the accident, the package containing the mirror was located on the ground about two to three feet from the posts. Endres also stated that the door through which plaintiff exited has no windows, and that there are no signs inside warning of the posts by that door. Endres testified that when plaintiff paid for the mirror, he asked plaintiff if he needed any help with it, and plaintiff simply indicated that he wanted Endres to release the lock on the pedestrian door.

At the conclusion of the trial, the jury found for plaintiff and assessed plaintiff’s damages at $85,000. The jury found plaintiff 20% negligent and accordingly fixed plaintiff’s recoverable damages at $68,000.

Following the trial, the circuit court found that it should have allowed a motion for a directed verdict at the close of plaintiff’s evidence, ruling on which was reserved at the conclusion of plaintiff’s case. In so holding, the circuit court concluded that defendant had no reason to expect that plaintiff’s attention would be distracted when he exited the door or that he would forget about the posts outside the door. The circuit court further stated that the posts in themselves did not constitute a danger and that they became dangerous only when acted upon by some external force. The court concluded that the only distractions were those induced by the plaintiff himself.

The court further held that although defendant owed plaintiff the duty of care owed to an invitee by a possessor of land, plaintiff’s accident was not foreseeable. In support of this holding, the court stated:

“The plaintiff knew of the posts and by his own actions brought about his injury by neglecting to take into account the possible obstacles into which he might run carrying a mirror in the fashion that he was. Had there been no posts but a person approaching the door from the outside at an angle where he would be in approximately the position of the posts the plaintiff would surely have done the same thing and hit him with the mirror rather than an inanimate post.”

For these reasons, the circuit court entered a judgment n.o.v. in favor of defendant and against plaintiff.

In order for a court to allow a motion for judgment n.o.v., all of the evidence, when viewed in its aspect most favorable to the opponent, must so overwhelmingly favor the movant that no contrary judgment based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) A plaintiff seeking to recover damages on the basis of alleged negligence must establish a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307.

Whether a duty exists is an issue of law to be determined by the court. (Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 484 N.E.2d 1088.) The concept of duty, in the context of negligence actions, has always been rather nebulous. In describing the concept, the court in Mieher stated:

“The term is so ill-defined and its boundaries so indistinct that one commentator has observed: ‘There is a duty if the court says there is a duty.’ And he concluded that the court’s pronouncement often reflects the policy and social requirements of the time and community. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15; see also Prosser, Law of Torts (4th ed. 1971) 325-26.” (Mieher, 54 Ill. 2d at 545, 301 N.E.2d at 310.)

The reasonable foreseeability of injury is a “key concern” in determining whether a duty exists, but it is not the only factor. Additional considerations are “the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 526, 513 N.E.2d 387, 396, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.

Both parties agree that the law applicable to a business’ duty to take measures to protect its customers from harm while on its premises is stated in sections 343 and 343A of the Restatement (Second) of Torts (Restatement (Second) of Torts §§343, 343A (1965)). (See Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.) In relevant part, these sections provide:

“Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” (Restatement (Second) of Torts §343, at 215-16 (1965).)
“Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.” (Restatement (Second) of Torts §343A, at 218 (1965).)
“Comment ***:
* * *
e. In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.

Illustration:

1. The A Company has in its store a large front door, made of heavy plate glass. The door is well lighted and plainly visible, and its existence is obvious to any person exercising ordinary attention and perception. B, a customer in the store, while preoccupied with his own thoughts, mistakes the glass for an open doorway, and runs his head against it and is injured. A Company is not liable to B.
/. There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.” Restatement (Second) of Torts §343A, Comment, at 218-20 (1965).

Here plaintiff, while preoccupied with an item which he purchased at defendant’s store, bumped into a permanent fixture on the premises, which he had observed on his way into the store.

The actions of the plaintiff in this case are somewhat similar to those of the plaintiff in Rosenberg v. Hartman (1943), 313 Mass. 54, 46 N.E.2d 406. There, a customer entered a store through an open door. Upon leaving the store, he walked into the door, which in the meantime had been closed and which he failed to see on his way out, and was injured. The door consisted of one large pane of practically transparent glass, and there was virtually nothing to interfere with its complete transparency. However, the door was in no way out of repair and its handles, lock, and fittings were in plain sight. In holding that an intermediate appellate court properly reversed a judgment for the plaintiff, the court stated:

“A door of this kind is to be classed with other forms of construction such as various types, whether new or old, of doors, floors, stairs, and ramps, not out of repair, upon which it is possible for an invitee to receive injury, but vzhich are not of such a character that danger is reasonably to be anticipated from them to persons exercising ordinary care.” Rosenberg, 313 Mass. at 55, 46 N.E.2d at 406.

Similarly, in Snyder v. Ginn (1960), 202 Va. 8, 116 S.E.2d 31, the plaintiff was injured when she walked through a plate glass window adjacent to an inner door of a department store. Each set of doors consisted of clear glass which was framed in metal, with a metal crossbar handle extending across the middle of their full width. Before leaving the store, the plaintiff stopped to look at some jewelry at a counter immediately in front of the doorway. Upon stepping away from the counter, the plaintiff observed only the outside set of doors and did not observe the inside set of doors. She admitted that if she had been looking straight ahead, she would have seen the inside doors as distinguished from the adjacent glass panels. Noting that the location and condition of the inside doors were completely open and obvious to anyone looking in their direction, the court held that there was no evidence of negligence on the part of the store owner. On this basis, the court reversed a judgment in favor of the plaintiff.

The Illinois cases on which plaintiff mainly relies are factually distinguishable from the case at bar. The defectively designed stairways involved in Allgauer v. Le Bastille, Inc. (1981), 101 Ill. App. 3d 978, 428 N.E.2d 1146, and Erne v. Peace (1987), 164 Ill. App. 3d 420, 517 N.E.2d 1203, as well as the dangers inherent in the defectively designed metal cutting machine in Derrick v. Yoder Co. (1980), 88 Ill. App. 3d 864, 410 N.E.2d 1030, were less obvious than the concrete post with which plaintiff collided. In contrast to the pile of lumber which caused injury to a youth who had climbed upon it in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836, and the hole in the floor of a house under construction which was to contain a basement stairway and caused the plaintiff’s injuries in Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 489 N.E.2d 35, the concrete posts were a permanent condition which had been in existence for several years when plaintiff was injured.

Under the circumstances of this case, defendant could not reasonably have been expected to foresee that one of its customers would block his vision with an object which he had purchased and fail to see a five-footrtall concrete post located outside of an entrance to its store. The steel posts were not a hidden danger. Although the cost of providing warnings of or removing the concrete posts in question probably would have been slight, the cost of taking like measures with respect to other similar objects with which inattentive customers could possibly collide would indeed be great.

For the foregoing reasons, we hold that defendant did not owe plaintiff a duty under the facts of this case, regardless of whether plaintiff’s theory of liability is premises liability or negligent creation of a hazardous condition. Because we decide defendant owed plaintiff no duty, we need not consider the additional reasons which defendant advances for upholding the circuit court’s judgment n.o.v.

The judgment n.o.v. in favor of defendant K mart Corporation is affirmed.

Affirmed.

GREEN, J., concurs.

JUSTICE LUND,

dissenting:

As stated in the majority opinion when referring to section 343A of Restatement (Second) of Torts, K mart was not liable to plaintiff, invitee, from the danger known to him or obvious to him unless K mart should anticipate the harm, despite the knowledge or obviousness.

The plaintiff entered the same door he exited, the location of the accident. Customers regularly used the exit, and there was no warning on the exit side of the entrance of the posts located immediately outside the door. The two posts were close to the door and could easily block a person carrying a large box or package. If plaintiff had entered the main door, never having been near the service exit door, liability for creation of a dangerous situation would certainly have been upheld.

Plaintiff’s own testimony indicated his knowledge of the posts was based upon his belief that he must have seen them when he entered the door. I challenge the majority to say, after they have entered a retail establishment, that they remember the nature of the entry construction, as well as possible obstructions.

In Allgauer v. Le Bastille, Inc. (1981), 101 Ill. App. 3d 978, 428 N.E.2d 1146, the plaintiff fell on steps when leaving the restaurant. The court rejected defendant’s argument that knowledge based on the fact she had entered the same entrance, as a matter of law, barred recovery. The court held this matter had no bearing on whether the defendant had a duty to give warnings, and was only relevant as to the issue of contributory negligence.

The defendant was a retailer and sold large items, carried out of the store by customers. It was within the realm of the jury’s discretion to hold K mart should have anticipated harm despite plaintiff’s having entered the obstructed doorway. We should reverse, mandating reinstatement of the jury verdict.