author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LISA FORBES, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—1040
    Opinion filed October 26, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Vicki Rogers, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, Lisa Forbes, of the murder of James Bankston (James); the judge sentenced her to imprisonment for 25 years. The defendant was 20 years old at the time of trial. She began going with James when she was 15 years old. They had a child, Mercedes, who was two years old at the time of James’ death. The relationship ended, and the defendant filed a paternity suit against James. She was awarded $5,800; she filed a lien on James’ home. On December 15, 1985, she left her home in Milwaukee and went to James’ home in Chicago, where he was living with his wife, Yvette. The defendant stabbed James to death with a butcher knife. Her first contention is that she was not proved guilty of murder beyond a reasonable doubt.

. Yvette Bankston testified that at the time of the killing she shared an upstairs apartment with James and her two children. James’ sister, Cloteina Bankston, lived in the first-floor apartment with her son, Amanuel. The defendant had called earlier in the week and spoke with James while Yvette listened on the extension phone. The defendant told him that she wanted to get married and that she “didn’t want the house.” James told the defendant that he didn’t want to marry her and that he loved someone else. The defendant said that she “hated” James and their baby; that if she couldn’t have him no one would; and that she was going to put the baby up for adoption. The defendant also said she was coming to Chicago to visit James.

On the morning of the stabbing, Yvette answered the defendant’s telephone call. The defendant asked to talk with James, and Yvette told her that he was not home. The doorbell rang on two occasions, but Yvette and James did not answer it. Amanuel, James’ nephew, came to the apartment and spoke with Yvette. Yvette looked out the window and saw the defendant and her child at the front door. She told her girlfriend, Felicia Nickols, and James that the defendant was at the door. Yvette answered the door and told the defendant that James was not home. The defendant said she would wait on the porch until he returned. Twenty minutes later Yvette let the defendant into the apartment because it was cold outside, and Yvette feared for the baby’s welfare. The defendant took her coat off and sat down in the living room; Yvette left the defendant in the living room and went into the kitchen. James came into the kitchen and asked for some tea. Yvette told Amanuel to make some. When Amanuel returned with the tea, Yvette brought it to James, who was sitting in the living room with the defendant. The defendant asked James whether there was “any place that they could talk alone.” Yvette returned to the kitchen. Shortly afterward she heard James yell, “Baby, help me. She is trying to kill me.” Yvette said that James sounded like he was in “shock and distress.” Yvette ran to the living room with Amanuel and Felicia. She saw the defendant withdraw a butcher knife from James’ left arm. She said that blood “splattered out like a fountain.” She observed a gash in James’ chest close to the heart area. The defendant spun around and “lunged” at Amanuel with the knife. She then ran out the front door but got caught between the inner door and the screen door, which was locked. As she turned back to return to the apartment, Yvette slammed the door on her and trapped her inside until the police arrived.

Amanuel Bankston testified that after Yvette gave the tea to James and returned to the kitchen, Amanuel looked down the hallway toward the living room. He saw the defendant putting on her coat. He then heard James yell, “Baby, baby, help me, she is trying to kill me.” Amanuel ran to the living room, where he saw the defendant strike James across the chest with the knife and then plunge it into his arm. The defendant stood up, looked at Amanuel and “spun” the knife toward him. Amanuel dodged the knife and ran to the kitchen to call the police. When he returned to the living room, he helped Yvette hold the front door where the defendant was trapped. He said that after the stabbing the defendant appeared “calm, like nothing had happened.”

Felicia Nickols testified that she was in the kitchen with Yvette and Amanuel when she also heard James scream, “Baby, baby, help me. She is trying to kill me.” Felicia ran to the living room, where she saw James, who was yelling, “She stabbed me, she stabbed me. Why?”

Chicago police officer John McCann testified that on December 15, he spoke with the defendant at the Area 3 police station about 3 p.m. She had been first taken by the arresting officers to the Eighth District police station. He read the defendant her Miranda rights, and the defendant responded that she understood them. He asked if she would be willing to speak to him. They then had a conversation that lasted about 20 minutes. She explained what had happened. The statement the defendant later gave to the assistant State’s Attorney was basically the same thing she told McCann. He talked to her for about 20 minutes. At about 5 p.m., Assistant State’s Attorney Gregory Giróte interviewed the defendant in McCann’s presence. The defendant thereafter gave an oral and written statement.

Assistant State’s Attorney Giróte testified that he read the defendant her Miranda warnings and that the defendant said that she understood them. Giróte wrote down what she told him. She told Giróte that on December 15 she took a bus from Milwaukee to Chicago because she wanted to talk with James about child support for Mercedes. The relationship between James and the defendant had ended about two years before. She went to James’ house and rang the bell but got no answer. At this time she was “mad because [James] knew [she] was coming and also [she] knew somebody was home and they would not answer the door and it was cold outside.” The defendant walked to a nearby Jewel food store where she bought the butcher knife that she later used to kill James. She sat on the steps with her two-year-old daughter Mercedes until Yvette let her in. She again said that she was “mad at this point because of the runaround [she] was getting.” After she entered the house she had a conversation with James while he was sitting on a couch with his feet up on a table. When she got up to leave, James was still sitting on the couch drinking tea. She started to leave, but then “something went click because [she] was so mad”; she reached into her bag, pulled out the knife and started stabbing James. She did not remember how many times she stabbed him. James did not have anything in his hands but a cup of tea.

James died from two stab wounds and five cutting wounds. The stab wounds were to his chest and shoulder, and the cutting wounds were to his left chest, left arm, left hand and left ankle.

The defendant was a high school graduate and was employed as a data processor. She testified that during her relationship with James he provided some financial support for Mercedes and visited her often. In spring of 1984 she filed a paternity suit seeking child support from James. Even after she filed the suit James continued to visit her and Mercedes. In September of 1985 she filed a lien on James’ house but she did not tell James that she had filed the lien. He continued to visit her, and he was cordial during the visits. She moved to Milwaukee because her relation with James had turned hostile. He threatened her on a continuous basis to drop the paternity suit and tried to talk her out of filing a lien, not knowing that she had already done so. On December 11 she called James on the telephone. James told her that he would make her life miserable if she proceeded on the court suit.

On December 15 she took the bus to Chicago with her daughter and arrived at James’ house in the morning. Nobody answered the bell. She thought she saw someone looking out the first-floor window and again rang the doorbell but no one answered. She walked to a pay phone and called James. Yvette answered and told her that James was not at home and that she did not know when he would be home. The defendant then went to Jewel food store where she bought a butcher knife and some other things and returned to James’ home. She bought the knife because she was “scared” of James. She said that “it was a combination of things, going to the house and seeing somebody peek out of the window and not answer the door.”

She again rang the doorbell, and Yvette answered. Yvette told her that James was not at home, and the defendant said she would wait on the porch. Eventually, Yvette opened the door and let her in. She sat and talked with James in the living room of his apartment. They discussed the lien, among other things, and began to argue. She decided to leave. When she asked who Yvette was, James said Yvette was his “old lady.” She then made a sarcastic remark about Yvette, and James threw a cup of tea in her face while he was sitting on the couch. As a result her vision became blurred when her soft contact lenses absorbed the fluid. She hit James in the face with the baby’s bag. James then called to Yvette to “come get this bitch.” She saw people running down the hallway. She then took her knife out of her bag, unwrapped the plastic wrapping and started stabbing James. James had never struck her or pushed her at any time, and she saw nothing in his hand at the time of the stabbing other than the cup of tea.

It is our judgment that the State’s case against the defendant was overwhelming. The undisputed evidence discloses that there was a dispute between the defendant and James about support payments for the child; that she left Milwaukee to come to James’ home and that she bought a butcher knife. Three witnesses testified that they heard James cry out for help; he said that the defendant was trying to kill him. James was stabbed twice and cut five times, once in the ankle. Witnesses saw her withdrawing the knife from James’ arm; she had already stabbed him in the chest. One witness actually saw her strike James across the chest and then plunge the knife into his arm. In her statement she admitted that she was mad when she entered the apartment with the butcher knife. She said that “something went click because [she] was so mad,” but she had the presence of mind to pick out the knife from her purse, take off the wrapping and then stab him repeatedly. She did not remember how many times she stabbed him. The defendant’s own testimony was damaging to her. James had never harmed her before he allegedly threw the tea in her face. She swung the bag she was holding at his face, and he called to Yvette to “come get this bitch.” She thought he was going to hurt her. She repeated the same sequence of events that she had described to Giróte: she took out the knife, took off the wrapping and stabbed James. We conclude, in short, that the defendant’s claim that the evidence was insufficient is without merit.

The defendant next contends that the court erred in denying her motion to suppress the statement she made to the assistant State’s Attorney. At the hearing on the motion to suppress, Officer James O’Marrah testified that he gave the defendant Miranda warnings when he arrested her around 12:15 p.m. She said that she understood. She did not respond when he asked what had happened. He noticed bloodstains on her hand, but he did not see any cuts. The police decided to let Mercedes remain in the custody of relatives of James.

Officer McCann and Assistant State’s Attorney Giróte also testified on the motion to suppress. McCann questioned the defendant at about 3 p.m. He also advised the defendant of her rights; she said she understood and agreed to answer questions. The questioning session lasted about 20 minutes during which time technicians from the crime detection laboratory took photographs of her and samples of the blood which were still on her hands. He observed scratches on her hands and asked if she wanted medical treatment. She said that it was not necessary at that time. At the conclusion of the questioning and after the crime detection laboratory technicians were finished, the defendant was allowed to wash her hands at about 3:30 p.m. He was present when the defendant was questioned by Assistant State’s Attorney Giróte at 5:50 p.m. that same day. She made no complaints at any time. She was calm, coherent, never asked for an attorney and did not refuse to talk. After the statement she made to Giróte, she was allowed to telephone her mother at about 7 p.m. and was taken to a hospital for medical treatment. She did not receive any food while at the police station.

Assistant State’s Attorney Giróte first spoke with McCann after arriving at the station and then questioned the defendant in the presence of McCann and his partner. Giróte read the defendant her Miranda rights; she stated that she understood them and agreed to talk to him. He questioned her for about 10 minutes and then asked if she would give a written statement. She agreed; he told her to repeat her statement while he wrote it down. After the statement was written down, he read it to her aloud and then told her to read it. She looked at each page and upon his request signed each page. She never asked for an attorney and was alert, coherent and rational during the questioning.

The defendant testified that she did not remember if the police read her rights when she was arrested. She asked if she could take her child but was refused, and she asked for an attorney. At the police station she asked if she could use the bathroom and make a phone call. She was not given any food and her hands were cut and bleeding. She was taken to another police station; she asked the detectives about her child and if she could use the telephone and bathroom. They told her she could not do so at that time. She also told them that she wanted an attorney and that she did not want to make a statement. The detectives left the room for short periods on several occasions and then returned to ask her again to make a statement. She finally agreed to answer questions when she realized that she would only be allowed to use the telephone and bathroom and to find out about her child after she cooperated with them. After talking to the detectives, arrangements were made for her child to be picked up; after signing the statement, she was allowed to call her mother and was taken to a hospital. She said she gave a statement only because the police kept coming into the interviewing room and asking her to do so and because she was worried about her daughter. She said that she told the police the truth; she denied giving the statement that Giróte identified.

At the time he denied the motion to suppress, the judge said that the issue was essentially that of credibility of the witnesses and that he was resolving the conflict in testimony in favor of the police officers and the assistant State’s Attorney. He specifically found that the defendant was given the Miranda warnings during the ride to the police station; that she was allowed to place a telephone call before she gave the statement; and that she was allowed to use the washroom at approximately 3:30 p.m., which was before she gave the statements. The judge concluded that under the totality of the circumstances he found that the statement was freely and voluntarily given and that the defendant knowingly and intelligently waived her right to remain silent and her right to an attorney.

The defendant’s argument is twofold: first, she maintains that her silence after receiving Miranda warnings for the first time amounted to an assertion of her right to remain silent and that that right should have been “scrupulously honored” as required by Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321. The answer to this argument is that her mere silence after receiving Miranda warnings was not an assertion of her right to remain silent. The applicable principle is derived from People v. Stack (1986), 112 Ill. 2d 301, 493 N.E.2d 339: If a defendant does not respond to Miranda warnings, the interrogations may continue, although any statement made by the defendant would be inadmissible without proof that the defendant understood the right to remain silent and had waived that right. “[A] defendant can end interrogation only by making an overt response.” 112 Ill. 2d at 306.

The defendant’s second argument is that the totality of the circumstances necessarily leads to the conclusion that the statement was not voluntarily made by the defendant. On this point, she makes the threshold argument that we should ignore the previous pronouncements of the Illinois Supreme Court that the trial court’s finding of voluntariness of a statement will not be reversed unless it is against the manifest weight of the evidence. (See People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) She maintains that the rule of the Illinois Supreme Court is in direct contradiction to Federal law and that we should subject the evidence to a de novo review. This precise argument had been made and rejected in People v. Abernathy (1989), 189 Ill. App. 3d 292, 545 N.E.2d 201, and People v. Fisher (1988), 169 Ill. App. 3d 915, 523 N.E.2d 1119. As an intermediate court of review we are bound to follow the law as enunciated by our supreme court, which has spoken in People v. Clark (1986), 114 Ill. 2d 450, 501 N.E.2d 123, and has reaffirmed the rule of Prim that the trial court’s finding that a statement was voluntary will not be disturbed unless the finding is contrary to the manifest weight of the evidence.

We need not repeat the testimony of the witnesses, including the defendant, who testified on the motion to suppress. It is enough to say that we agree with the trial judge that the issue centered on the credibility of the witnesses. The defendant’s testimony that she asked for a lawyer, that she was denied the use of the washroom or the telephone and that she was denied medical treatment was contradicted by the testimony of other witnesses. We cannot say that the trial judge was unjustified in relying on the testimony of the State’s witnesses. In turn, we cannot say that his decision determining that the statements were made voluntarily was against the manifest weight of the evidence.

The defendant next contends that the judge erred in denying her motion to discharge the jury venire because of remarks made by a prospective juror. During jury selection the entire venire was asked by the judge whether they or any member of their families or friends had ever been the victim of a crime. One of the prospective jurors said that his uncle had been beaten and murdered in 1976 in New Jersey. The individuals involved were convicted and imprisoned but released after two years. He feared that the experience would cause him to be biased and prejudiced. The trial judge asked whether he could put aside the experience and be fair and impartial, and the juror replied, “Not with the sentence that was received.” The juror was then dismissed for cause. The defense attorney then made a motion to discharge the venire which the judge denied. The judge thereafter admonished the jury:

“Ladies and gentlemen, you just heard the last juror mention concerning the murder of his uncle in New Jersey, the sentence, etc. The laws of New Jersey are substantially different than they are in Illinois.
And secondarily, I would remind you that you are not to concern yourselves with the sentencing. Your total responsibility is to determine whether or not the State has proven any or all of these counts or charges, if you will, against the defendant beyond a reasonable doubt.
If you do, it is your responsibility to sign a verdict of guilty. If you find that the State had not proven the defendant guilty beyond a reasonable doubt of any or all of these charges, as to those charges so found, it is your responsibility to sign a verdict of not guilty. Any sentencing, in the event there is a finding of guilty, will be the responsibility of the court pursuant to statute outside your presence in these proceedings.
Would the statements of the last juror affect any of your ability to be fair and impartial? Any one at all? No one.”

The defendant does not cite any case in support of her argument. We doubt that one exists that would justify a reversal of conviction on this ground. We believe the judge acted promptly and correctly and exercised his discretion soundly.

The defendant next maintains that the jury was erroneously instructed on the offense of voluntary manslaughter. The State agrees that the jury was erroneously instructed based on the holding of the supreme court in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. The State maintains, however, that Reddick should be given only prospective application. In People v. Brooks (1988), 175 Ill. App. 3d 136, 529 N.E.2d 732, the First District Appellate Court held that Reddick is to be applied retrospectively. The supreme court denied the State’s petition for leave to appeal. (People v. Brooks (1989), 124 Ill. 2d 557, 535 N.E.2d 916.) Following Brooks, other courts have held that Reddick was to be applied retrospectively in cases of direct appeal. (e.g., People v. Shields (1989), 181 Ill. App. 3d 260, 536 N.E.2d 999; People v. Fercsi (1989), 182 Ill. App. 3d 13, 537 N.E.2d 912.) The supreme court subsequently granted the State’s petition for leave to appeal in a number of cases, including Shields and Fercsi, and they have been consolidated. The supreme court recently decided People v. Flowers (1990), 138 Ill. 2d 218, and held that Reddick is to be applied prospectively in collateral proceedings. The question of its applicability to cases of direct appeal is still to be decided. We have been informed that final briefing in those cases has not been completed. Consequently, at this point, we must adhere to the decisions of this district including Brooks and hold that Reddick is to be applied retrospectively and that the court erred in instructing the jury on the burden of proof in establishing the elements of voluntary manslaughter.

Other cases decided after Reddick have held that the instruction constituted harmless error. (See People v. Nunn (1989), 184 Ill. App. 3d 253, 541 N.E.2d 182; People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531. Cf. People v. Skipper (1988), 177 Ill. App. 3d 684, 533 N.E.2d 44 (improper instruction on elements of aggravated battery held to be harmless error in view of the quantum of proof).) In People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972, the court held that, in order for an alleged error in instructions to be considered harmless, it must be demonstrated that the result of a trial would not have been different if the proper instruction had been given. (124 Ill. 2d at 187.) In our judgment the erroneous instruction constituted harmless error.

We need not repeat our discussion of the evidence in response to the defendant’s argument that the evidence was insufficient to convict. We will repeat our observation that the evidence was overwhelming. It has been demonstrated to us that the jury verdict would not have been different if a proper instruction had been given. Indeed, we have serious doubts that the evidence supported the giving of the voluntary manslaughter instructions, which were given over the State’s objection. Cf. People v. Everette (1990), 141 Ill. 2d 147 (evidence insufficient to support the giving of a self-defense instruction).

Before the defendant testified, the State made an oral motion in limine that she be barred from establishing any conversation she had with James unless the defense could “show some exception to hearsay.” Colloquy ensued during which the defense did not specify the contents of the conversations it would seek to introduce. The judge recognized that the defendant should be able to establish her state of mind at the time she stabbed James, but he said that the conversation should be “within scope of the time the incident took place” and he “assume[d] a fair cut-off would be the three-hour conversation several days before this incident.” The defendant’s attorney objected to the “cut-off” because, he said, “there were threats made against her by the victim at times.” He said he wanted to get into conversations that occurred in which the victim made threats against the defendant if he lost the house. After further colloquy the judge said this:

“At this point all I can suggest is I do not know what her testimony is going to be. We may have to have numerous side bars then because I cannot make a ruling at this point. My reasonable cut-off will be the three-hour conversation and thereafter. If you attempt to introduce anything therein after you have laid your foundation, I will be glad to take a look at it.”

The defendant now contends that statements made to her by James were admissible for the purpose of showing her state of mind and that the judge erred in restricting her proof. It is the general rule that a defendant claiming self-defense in response to homicide charges may show specific acts of violence and threats by the deceased. Such evidence is admissible to show the circumstances confronting the defendant, the extent of his apparent danger, and the motive by which he is influenced. (People v. Hoddenbach (1983), 116 Ill. App. 3d 57, 452 N.E.2d 32.) Assuming that the defendant had established self-defense, exclusion of testimony of threats made by the deceased would be error; and we believe restricting proof of threats, otherwise admissible and not cumulative, .to the three-day period before the stabbing would be an abuse of discretion. But we believe no error occurred because the defendant was able to establish proof of all threats she wished to introduce. We, therefore, need not decide whether the defendant presented even slight evidence of self-defense.

During her direct examination her testimony was restricted to a certain degree, but during cross-examination she was asked about the telephone conversation she had with James three days before the stabbing and the threats he made to her at that time. She said that was not the first time he said he would kill her if she touched his house. She also said she was afraid because of the threats he had made in the past. On redirect the following occurred:

“[DEFENSE ATTORNEY]: [The assistant State’s Attorney] asked you about threats that James Bankston made. Did these threats occur after the non-support case was filed?
A. Yes.
Q. These threats would occur when you would see him?
A. Or talk to him on the phone.
Q. What was the nature of these threats?
A. Just that, you know, he wanted me to drop the lawsuit and I wouldn’t and to just leave him alone about the money and not to file a lien against the house and that if I didn’t that he would make my life miserable, that the house was just about the only thing he had, and if I made him lose it, he would kill me. He would make me regret that I ever met him. Just the same.
Q. Do you have more to sayl
A. No.” (Emphasis added.)

We judge, therefore, that the court’s in limine ruling in no way prejudiced the defendant.

The defendant next contends that prejudicial error occurred during the State’s closing argument. The defendant did not object to the remarks during the trial and the generalized statement in the post-trial motion that the defendant was “denied a fair trial by the State’s closing and rebuttal arguments” was insufficient to preserve the remarks for review. (People v. Camp (1984), 128 Ill. App. 3d 223, 470 N.E.2d 540.) The defendant has therefore waived the issue. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Even if we were to assume that the question had been properly preserved, we hold that no prejudicial error occurred.

The prosecutor said that if a man was on trial the jury would not condone a man doing the acts that the defendant did and would not hesitate to sign a guilty verdict. That argument should not have been made, but, considering the quantum of the evidence against the defendant, its effect was harmless. At another point, the State’s Attorney said the following:

“Well, I suggest to you she got up there and told a story of lies. You can’t coach lies. Only the truth comes through. You can’t coach lies. It was a mass of contradictions.”

The defendant argues that that argument was a suggestion that the defendant’s attorney was engaging in trickery or other improper conduct. We have examined the entire argument of the prosecutor and conclude that it was an isolated passage which, when considering the entire argument, is susceptible of a meaning other than that suggested by the defendant. Consequently, we find no error. See People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500.

The defendant last contends that the victim-impact statements were improperly admitted. The defendant concedes that the recent supreme court decision in People v. Felella (1989), 131 Ill. 2d 525, 546 N.E.2d 492, provides that victim-impact testimony is admissible in noncapital cases. The defendant still maintains, however, that the impact statement of James’ nephew Amanuel should not have been admitted because the statute restricts the statement to that made by the spouse, parent, child or sibling of a person killed. (Ill. Rev. Stat. 1987, ch. 38, par. 1403(a).) The defendant also maintains that the impact statement of James’ wife was improperly admitted because her oral statement had not been prepared in writing in conjunction with the State’s Attorney’s office before sentencing as required by section 1406. (Ill. Rev. Stat. 1987, ch. 38, par. 1406.) The defendant made no objection to the statements of James’ nephew or his wife; consequently, any objection is waived. (People v. Hood (1989), 191 Ill. App. 3d 129, 547 N.E.2d 637.) The two cases cited by the defendant are not contrary to Hood. In People v. Scott (1989), 180 Ill. App. 3d 418, 535 N.E.2d 1113, the court held that the right to argue the question of the constitutionality of the act could be reviewed even in the absence of an objection in the trial court. Constitutionality is not the issue here. In People v. Fountain (1989), 179 Ill. App. ,3d 986, 534 N.E.2d 1303, the question of waiver was not discussed. Moreover, with respect to the testimony of the wife, the failure to comply with section 1406 is of such a technical nature that any error would be harmless. Similarly, when considering the nature of the offense and the fact that the defendant received a sentence only five years greater than the minimum, we conclude that the judge was not unduly affected by the impact statements of either the wife or the nephew. We note that James’ sister recommended a life sentence in her written statement and that the prosecutor asked for an extended term or, alternatively, the “harshest sentence provided by law.”

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE DAVIS, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—1871
    Opinion filed October 26, 1990.
    Rehearing denied November 21, 1990.

      Kenneth L. Jones, of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, William D. Carroll, and Thomas O'Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, Willie Davis, of armed robbery and robbery. Following a sentencing hearing, the trial judge found the defendant to be an habitual criminal and sentenced him to natural life imprisonment.

On March 18, 1985, Delores Collins, an employee at a fast-food restaurant, opened the restaurant at 10:30 a.m. and went behind the register. The defendant entered the front door five minutes later. Collins asked if she could help the defendant, and he said, “You know what I want.” While standing approximately two feet in front of Collins, he pulled a “big,” “dark-colored” gun from a paper bag and pointed the gun at Collins; Collins emptied the contents of the restaurant’s two cash registers into the paper bag and handed it to the defendant, who then “calmly walked out of the store.” Collins admitted that she was not familiar with guns, but stated, “It wasn't made of plastic. It wasn’t a funny gun, it was the real thing.” She said it had “this big thing in the outside where the bullets go in it.”

Two months later, after a separate robbery, the defendant was arrested in possession of a plastic toy gun. He confessed to the robbery of Delores Collins but said that he used a metal air pistol and that it was not the toy pistol in his possession when he was arrested. Delores Collins testified that the toy gun recovered from the defendant was not the gun she saw in his hand.

The defendant first argues that the armed robbery indictment against him was improperly based on the perjured testimony of a police officer and the misconduct of an assistant State’s Attorney before the grand jury. The defendant filed a motion to quash the indictment in which he alleged that Detective Edward Winstead testified before the grand jury that a man approached Collins, produced a handgun, announced a robbery and demanded the cash register receipts. After that testimony Winstead said that the defendant gave a statement in which he admitted that which Winstead had just testified to. The defendant maintains that Winstead’s testimony was not true and that Winstead knew it was not true because the defendant had given a statement admitting possession of a “toy gun,” but never a handgun. The motion to quash also alleged that a copy of Winstead's testimony was attached to the motion. The grand jury transcript is not attached to the motion to quash and is not in the record before us. In his brief the defendant alleged that he was attempting to obtain the grand jury transcript; he has apparently not done so; and he has failed to explain the absence of the grand jury transcript. Consequently, we reject the defendant’s claim for his failure to present proper record. See People v. Majer (1985), 131 Ill. App. 3d 80, 475 N.E.2d 269.

The defendant’s claim of prosecutorial misconduct is based on alleged misstatements of law made by the prosecutor in response to a question by a grand juror. The defendant does not refer to any part of the record reflecting the alleged remarks; as noted, the defendant did not present any record of the grand jury proceedings. In addition, prosecutorial misconduct was not asserted as ground for quashal of the indictment in the defendant’s motion. Therefore,, we will not consider this claim either.

The defendant maintains that we may take judicial notice of a Rule 23 order entered in another case in which the defendant was convicted of armed robbery and sentenced to natural life imprisonment by Judge Sophia Hall. The Rule 23 order (People v. Davis (1st Dist. 1989), No. 1 — 87—0045 (unpublished order under Supreme Court Rule 23)) contained portions of the grand jury testimony of Winstead, but those portions refer to another robbery; they have no reference to Winstead’s testimony concerning the robbery of Collins. The Rule 23 order does not support the defendant’s position with respect to Win-stead’s testimony in this case.

The order does purport to quote an assistant State’s Attorney as defining a dangerous weapon as “a metal object that looks like a gun.” Assuming that that remark by the prosecutor is properly before us, we judge that it is insufficient to justify a reversal. A mere misstatement of the law by a prosecutor before a grand jury does not of itself require a dismissal of the indictment. (See United States v. Buchanan (10th Cir. 1986), 787 F.2d 477.) Public policy considerations dictate that convictions should not be reversed because of a misstatement of the law by the prosecutor before the grand jury. (Cf. United States v. Mechanik (1986), 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938 (procedural errors before the grand jury do not require the reversal of a conviction by a petit jury); see also United States v. Thomas (7th Cir. 1986), 788 F.2d 1250.) As a general rule, after conviction, any misstatement of law made by a prosecutor before a grand jury is, for all practical purposes, immaterial, since the issue is whether or not the trial jury was instructed properly. Cf. People v. Linzy (1979), 78 Ill. 2d 106, 398 N.E.2d 1.

The defendant next contends that the testimony of Collins was insufficient to establish the use of a dangerous weapon because, he says, his written statement indicated that he used only a toy gun. The defendant specifically maintains that Collins’ testimony that the gun was real was nothing more than an opinion of a “young, extremely upset cashier with no experience with firearms” which was “worthless” in comparison "with the defendant’s confession to the robbery in which he stated that he used an air pistol or pellet gun and the fact that almost two months after this incident he was arrested with a toy gun in his possession shortly after a separate robbery of a different restaurant. We note first that the defendant told the police that the plastic weapon recovered from him at the time of his arrest was not the same “weapon” he used in the Collins robbery. He said that he used an air pistol or pellet gun. Although we need not say at this time that air pistols and pellet guns are, per se, dangerous weapons, we can say that, in our judgment, they are not “toy” guns. Moreover, it was for the jury to determine the weight to be given the testimony of Collins. Where the character of an instrument used in a robbery is in issue, it is for the jury to determine whether it was dangerous. (People v. Agee (1980), 85 Ill. App. 3d 74, 405 N.E.2d 1245.) Finally, the jury was not obliged to accept as true everything that the defendant told the police. It is for the jury to determine what weight should be given to the statement of the defendant. Illinois Pattern Jury Instructions, Criminal, No. 3.06-3.07 (2d ed. 1981).

After the defendant’s post-trial motion had been denied, a hearing began under the Habitual Criminal Act, which provides, in part, that the prosecutor “may file *** a verified written statement signed by the State’s Attorney concerning any former conviction” of certain offenses by the defendant. (Ill. Rev. Stat. 1987, ch. 38, par. 33B — 2(a).) Before the State began presenting evidence the judge asked the State if it had anything in aggravation. At the request of the prosecutor, the judge then took judicial notice of the jury verdict in the robbery case before him and a presentence investigation report that the State had filed. The State also introduced certified copies of the defendant’s previous armed robbery convictions and the testimony of the keeper of fingerprint records in the Bureau of Identification at Stateville Correctional Center and of an assistant State’s Attorney. Their testimony established the identity of the defendant as the person named in the previous armed robbery convictions.

After the State rested the defendant’s attorney argued that the State had failed to present a properly verified petition as required under the Act. The assistant State’s Attorney said that he had filed a written petition with the court some time before, that the clerk did not have the petition, but that the assistant State’s Attorney had tendered it to the defense attorneys. The judge pointed out that his first inquiry was for evidence in aggravation; he did not know that a petition had been filed. The defendant’s attorney acknowledged that he had received a copy of the petition, but said it was not verified. The judge noted that verification requires that the petition be made under oath. The defendant objected to the assistant State’s Attorney’s attempt to swear to the petition. The judge then set the case over for five days.

When the parties appeared at the later date, the judge said that he would strike the proceedings that had taken place and permit the State to start over again “now that I know what the State is proceeding on.” The defendant objected, but the judge struck the earlier proceedings and permitted the State to file a properly verified petition seeking life imprisonment. The defendant argues that this procedure constituted a double jeopardy violation.

The State maintains that the double jeopardy provision of the Constitution does not apply to sentencing hearings in general and to hearings under the habitual criminal statute in particular. Both sides have cited a number of cases on this issue, but we need not decide whether the double jeopardy provision of the Constitution is applicable to hearings under the Habitual Criminal Act, since we conclude that, assuming that it is applicable to such hearings, no constitutional violation occurred here.

In Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066, the trial judge declared a mistrial over the defendant’s objection because the indictment was defective. The Supreme Court rejected the defendant’s double jeopardy claim and expressed the rule that “[a] trial judge properly exercises his discretion to declare a mistrial *** if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.” (410 U.S. at 464, 35 L. Ed. 2d at 431, 93 S. Ct. at 1070.) In People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496, relying in part on Somerville, the court expressed the applicable rule as follows:

“If, after jeopardy has attached, a mistrial is declared at the prosecutor’s request, or by the trial judge sua sponte, retrial ordinarily will not be barred if there was ‘manifest necessity’ for the act. [Citation.] Manifest necessity is usually found where, due to circumstances beyond the control of the parties and the court, it becomes no longer possible to conduct the trial, or no longer possible to reach a fair result based upon the evidence. However, manifest necessity has also been found where an impartial verdict could not be reached because of prosecutorial or judicial error [citations] and where an impartial verdict could have been reached but a procedural error by the prosecutor made reversal on appeal a certainty [Illinois v. Somerville].” (Emphasis in original.) 75.Ill. App. 3d at 591-92.

We believe that the facts of this case are sufficiently similar to Somerville to make that case controlling. There is no substantial difference between the defective indictment in Somerville and the defective petition in this case. If it may be said that the petition could have been amended, our answer is that it was the defendant who objected strongly to any amendment. There was no overreaching by the prosecutor, and the judge recognized that proceeding further under a defective petition would be futile in that any finding against the defendant might be reversed on appeal. Under the circumstances, the judge exercised sound discretion; and the defendant’s constitutional protection against double jeopardy was not violated.

• 8 The defendant next argues that the State failed to meet its burden of proving all material allegations of its petition seeking a sentence of life imprisonment under the Habitual Criminal Act. Under the Act the State must establish two prior convictions for Class X felonies, that the third conviction was based on conduct after the effective date of the Act and within 20 years of the first conviction. The State must also establish that the. second offense was committed after conviction on the first offense. (Ill. Rev. Stat. 1987, ch. 38, par. 33B— 1(d)(4).) The State offered certified copies of convictions of armed robbery entered on May 21, 1975, and on October 2, 1978. The defendant contends that no evidence was introduced to establish the date of the commission of the offenses for which the defendant had been previously convicted. The specific issue, however, is whether the State has proved that the offense for which the defendant was convicted on October 2, 1978, was, in fact, committed after May 21, 1975, the date the defendant was convicted of the first offense.

At the outset, we deem it appropriate to address the State’s argument that its burden of proof on a hearing under the Habitual Criminal Act is a preponderance of the evidence. Although there is some uncertainty on the question, we believe the better view is that the State must prove the material allegations of its petition beyond a reasonable doubt. People v. Mays (1988), 176 Ill. App. 3d 1027, 532 N.E.2d 843; People v. Gill (1988), 169 Ill. App. 3d 1049, 523 N.E.2d 1239; People v. Mason (1983), 119 Ill. App. 3d 516, 456 N.E.2d 864.

The defendant did not argue in the trial court the failure of the State to establish the date of the second offense for which he was convicted on October 2, 1978. Therefore, we could hold that his claim of error is waived. (People v. Poole (1988), 167 Ill. App. 3d 7, 520 N.E.2d 1017.) For the sake of finality, however, we will address the issue, although, for purposes to be illustrated later, we will consider the failure of the defendant to raise any question of the sufficiency of the evidence at the hearing.

The State’s verified petition alleged that the crime for which the defendant had been convicted on October 2, 1978, was committed on May 12, 1978. During argument the prosecutor told the judge that the crime for which the defendant was convicted on October 2, 1978, was committed on May 12, 1978. The defendant’s attorney made no response to that statement.

The defendant had previously been convicted of armed robbery by a jury before Judge Sophia Hall on October 22, 1986. On December 11, 1986, Judge Hall sentenced the defendant to natural life under the Habitual Criminal Act. In her sentencing order she made findings of fact which included findings that the defendant had been convicted of the same two previous offenses upon which the judge based his sentence in this case. Judge Hall also found that the October 2, 1978, conviction was based on an offense that had occurred on May 12, 1978. The defendant appealed from that judgment of Judge Hall, and that appeal was the subject of the Rule 23 order which the defendant has asked us to judicially notice.

The defendant was convicted in this case on February 19, 1987. At the hearing on its petition, the State offered the order entered by Judge Hall on December 11, 1986. The defendant objected to the court taking judicial notice of Judge Hall’s “sentencing.” The judge sustained the objection and said he would not consider Judge Hall’s finding on the sentence but would consider her findings of fact. The defendant made no objection to that ruling. The State has called our attention to Judge Hall’s order and the fact that the judge in this case judicially noticed her order. The defendant here makes no issue of the fact that the judge judicially noticed Judge Hall’s order.

Under all these circumstances, particularly the finding of fact by Judge Hall which was judicially noticed by the trial judge, there was a sufficient basis for the trial judge to conclude that the State had established beyond a reasonable doubt the date of the commission of the second offense. We judge that no error occurred in the defendant’s sentence as an habitual criminal.

The defendant’s last contention is that his sentence of natural life violates several State and Federal constitutional provisions. The same constitutional challenges were addressed and rejected by this court in People v. Morissette (1986), 150 Ill. App. 3d 431, 501 N.E.2d 781.

For these reasons the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLYDE HARRIS, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3121
    Opinion filed October 26, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Mark H. Kusatzky, Assistant Public Defender, of counsel), for appellant.
    Cecil-A. Partee, State’s Attorney,, of Chicago (Renee Goldfarb, Walter P. Hehner, and Kimberly A. Mozdzierz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

After a bench trial, the defendant was found guilty of public indecency and sentenced to two years’ supervision. In his original brief he contended that the trial judge erred when he permitted the State to amend its complaint at the close of its case in chief, that he was not proved guilty beyond a reasonable doubt and that the judge erred when he took notice of the defendant’s age. In a supplemental brief he contended that neither the original complaint nor the amended complaint charged an offense.

Chicago police officer James Grubbs testified that he was on “narcotics surveillance” at 10:30 p.m. on March 7, 1988, in the tenth-floor hallway of a building at 4414 South Cottage Grove when he observed the defendant pulling on his penis, which was outside his pants, while he was in the presence of 9- and 10-year-old children. After the officer asked the defendant to put his penis back into his pants, he placed the defendant under arrest.

The pertinent parts of the public indecency section of the Criminal Code of 1961 read as follows:

“§11 — 9. Public indecency, (a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:
(1) An act of sexual penetration or sexual conduct as defined in Section 12 — 12 of this Code; or
(2) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person.” Ill. Rev. Stat. 1987, ch. 38, par. 11-9.

“Sexual Conduct” is defined in section 12 — 12(e) as follows:

“ ‘Sexual Conduct’ means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.” Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(e).

The complaint charged that the defendant “performed an act of deviate [sic] sexual conduct by pulling out his penis in the presence of kids that was [sic] playing in the area of the tenth floor of the above location, in a public place, 4414 South Cottage Grove.” The complaint cited section 11 — 9(a)(2) of the Criminal Code. (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 9(a)(2).) After the State rested and the defendant’s attorney argued for an acquittal, the State was permitted to amend that part of the complaint citing the statute from section 11 — 9(a)(2) to section 11 — 9(a)(1).

We believe that no error was committed when the State was permitted to amend the complaint. The language of the charge was not altered. The change was simply from the citation of one section of the statute to another, a technical defect which did not result in prejudice to the defendant sufficient to warrant reversal. (People v. McBrien (1986), 144 Ill. App. 3d 489, 494 N.E.2d 732.) But we believe that the conviction should be reversed because the State failed to charge an offense and, more importantly, because the State failed to prove the defendant guilty of a violation of section 11 — 9(a)(1).

Under section 11 — 9(a)(1) and section 12 — 12, "public indecency” requires that the act be done “for the purpose of sexual gratification or arousal of the victim ore the accused.” (Ill. Rev. Stat. 1987, ch. 38, pars. 11 — 9(a)(1), 12 — 12.) Under section 11 — 9(a)(2) the act must be done with the intent to arouse or satisfy the sexual desire of only the accused. Thus, under either section, the purpose for which the act is done is a necessary element and must be charged. A case precisely in point is People v. Edwards (1990), 195 Ill. App. 3d 454, 552 N.E.2d 358, in which the court reversed a conviction of aggravated criminal sexual abuse for failure to charge that the act was done for the purpose of the sexual gratification or arousal of the victim or the accused.

The State does not dispute the defendant’s contention that the complaint failed to charge an offense. It is the State’s position, however, that the defendant's argument comes too late and in an improper form. The State maintains that the only proper forms for raising the sufficiency of a criminal complaint are in a motion to dismiss under section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1) or in a motion in arrest of judgment under section 116 — 2 (Ill. Rev. Stat. 1987, ch. 38, par. 116 — 2). Since section 114 — 1 refers to pretrial motions, the State argues, the motion to dismiss must be filed before trial. A number of cases are contrary to the State’s position. In People v. Johnson (1979), 69 Ill. App. 3d 248, 387 N.E.2d 388, cited by the defendant, and People v. Clutts (1976), 43 Ill. App. 3d 366, 356 N.E.2d 1367, and People v. Stanley (1976), 42 Ill. App. 3d 99, 355 N.E.2d 582, cited in Johnson, convictions were reversed on the ground of the insufficiency of the complaint where the motion to dismiss was made during the trial. All three opinions distinguished People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437, which is relied on in this court by the State. In Pujoue, the supreme court held that where the sufficiency of a complaint is attacked for the first time on appeal, failure to allege an element of an offense does not necessarily render the complaint void. The test becomes whether the complaint apprised the accused of the precise offense charged with sufficient specificity to permit preparation of his defense and allow pleading a resulting conviction as a bar to further prosecutions arising out of the same conduct. (61 Ill. 2d at 339.) Johnson, Clutts and Stanley all held that Pujoue’s holding was restricted to cases where the insufficiency of the charge was raised for the first time on appeal.

The State seeks to distinguish Johnson, Clutts, and Stanley because the defendant here did not make a motion to dismiss the complaint but instead raised the question in a motion for an acquittal at the close of the State’s case. The argument made by the defense attorney at the close of the State’s case included the following remarks:

“Third of all, we ask for a directed finding based on the facts of the complaint itself. The complaint itself is insufficient. The State is proceeding on a charge against Mr. Harris, and they’re not even alleging in the complaint the necessary elements to prove-up their charge. If you read the complaint, you will see there is no allegations [sic] that my client, Mr. Harris, acted in such a way with the intent to allow or satisfy his sexual desires.”

We see no difference in substance between a motion to dismiss on the ground of insufficiency of the charge which is made during trial and a motion for acquittal on the same ground. Consequently, we believe that the issue was properly presented to the trial judge and that the defendant should have been discharged on that ground.

Under ordinary circumstances, a reversal on the ground that the complaint did not charge an offense could entitle the State to refile proper charges. (See People v. Edwards (1990), 195 Ill. App. 3d 454, 552 N.E.2d 358. Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1(e).) It is our judgment, however, that the evidence fails to establish guilt on the charge specified in the amended complaint, and that, therefore, the State may not refile the charge and add the missing allegation.

The proscribed “sexual conduct” in section 11 — 9(a)(1) is restricted to touching or fondling by the victim or the accused of specific parts of the body of the victim or the accused for the purpose of sexual gratification or arousal of the victim or the accused. We disagree with the State’s argument that this section is applicable where the accused touches himself. To follow the State’s argument to its logical conclusion, the section would be applicable where the vietim touches himself. At best, the section is ambiguous and, like all penal statues, must be construed strictly in favor of the accused. One is not to be subjected to a penalty unless words of a statute plainly impose it. (United States v. Campos-Serrano (1971), 404 U.S. 293, 30 L. Ed. 2d 457, 92 S. Ct. 471.) It is our judgment that section 11— 9(a)(1) does not plainly embrace the conduct of the accused in this case. After oral argument, the defendant was given leave to cite People v. Gann (1986), 141 Ill. App. 3d 34, 489 N.E.2d 924, which is at least analogous authority for the defendant’s position. In Gann the defendant was charged with aggravated criminal sexual abuse and public indecency; he was found guilty only of aggravated criminal sexual abuse. The evidence showed that he was masturbating in the presence of a victim under the age of 13.

The statute provided that a person commits aggravated criminal sexual abuse if the person is over 17 years of age and “commits an act of sexual conduct with a victim” under the age of 13. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 — 16(c)(1).) The “sexual conduct” in that case included the same definition of “sexual conduct” that this case does. The court reversed the conviction of aggravated criminal sexual abuse, holding that the phrase in the statute, “with a victim,” implied more than sexual conduct in the presence of a victim and that it required actual physical contact between a victim and an accused.

The Gann court also observed that the evidence of lewd exposure supported a conviction of public indecency under section 11 — 9(a)(2). We make the same observation here. The fact that the defendant did more than the statute required by touching or fondling himself does not remove his conduct from the proscription of section 11 — 9(a)(2), the section under which the defendant was originally charged. By this observation concerning section 11 — 9(a)(2), we do not mean to suggest that the State may refile a charge under that section of the statute.

For these reasons, the judgment of the circuit court is reversed. ■

Judgment reversed.

McNAMARA and RAKOWSKI, JJ., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    AMERICAN AMBASSADOR CASUALTY COMPANY, as subrogee of Bruce Anderson, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—0343
    Opinion filed October 26, 1990.

      Van Emden, Busch & Van Emden, of Chicago (George J. Van Emden, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

The subject of this appeal is the dismissal with prejudice of plaintiff’s complaint which sought recovery from defendant of $10,552, the amount paid by plaintiff to its insured for the loss of the insured’s automobile. The trial court granted defendant’s motion to dismiss which asserted that defendant was immune from suit under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 4 — 102). Plaintiff appeals, asserting that (1) defendant was liable under a bailment theory, (2) the Tort Immunity Act was inapplicable, and (3) even if the Tort Immunity Act was applicable, defendant was liable for breach of its special duty owed to plaintiff’s insured.

Plaintiff, American Ambassador Casualty Company, as subrogee of its insured, Bruce Anderson, brought this action against defendant, the City of Chicago, seeking recovery of $10,552.50, the amount paid to Anderson for the loss of his vehicle. The complaint alleged that Anderson’s vehicle was insured by plaintiff against loss by theft under an automobile policy providing comprehensive coverage. Plaintiff asserted further that defendant impounded Anderson’s automobile after the driver of the vehicle, not Anderson, was arrested on December 22, 1988, and although Anderson demanded the return of his vehicle, defendant was unable or unwilling to return it. The automobile was reported stolen on January 26, 1989, by Chicago police officer [Raymond] Pellegrini. Plaintiff sought a judgment from defendant for the $10,052 paid to Anderson, plus the $500 deductible under the insurance policy.

Defendant filed a motion to dismiss the complaint, asserting that it was immune from suit under the Tort Immunity Act (111. Rev. Stat. 1987, ch. 85, par. 4 — 102). Plaintiff responded to defendant’s motion, asserting that defendant was liable under a bailment theory or, in the alternative, for breach of the special duty owed to plaintiff’s insured. Defendant replied, arguing that no bailment relationship had been shown, that the Tort Immunity Act was applicable, and that plaintiff had alleged insufficient facts to establish a special duty owed to plaintiff’s insured. The trial court granted defendant’s motion and dismissed plaintiff’s complaint with prejudice.

We initially consider whether plaintiff’s complaint adequately set forth a claim under a bailment theory.

A bailment is the delivery of property for some purpose upon a contract, express or implied, that after the purpose has been ful.filled, the property shall be redelivered to the bailor, or otherwise dealt with according to his directions, or kept until he reclaims it. (Kirby v. Chicago City Bank & Trust Co. (1980), 82 Ill. App. 3d 1113, 1116, 403 N.E.2d 720, 723.) In order to properly plead the existence of and the right to recover under a bailment theory, the following elements must be alleged: an agreement, express or implied, to create a bailment; delivery of the property in good condition; acceptance of the property bailed by the bailee; and nonreturn or redelivery of the property in a damaged condition. Mueller v. Soffer (1987), 160 Ill. App. 3d 699, 704, 513 N.E.2d 1198, 1201; Robinson v. St. Clair County (1986), 144 Ill. App. 3d 118, 120, 493 N.E.2d 1154, 1155; Wright v. Autohaus Fortense, Inc. (1984), 129 Ill. App. 3d 422, 424-25, 472 N.E.2d 593, 595.

The complaint alleged that defendant impounded the subject automobile after the driver was arrested on December 22, 1988, and although plaintiffs insured demanded the return of his vehicle, defendant was unable or unwilling to return it. A police officer ultimately reported the automobile stolen on January 26, 1989. Defendant did not file an answer denying these assertions, and its motion to dismiss admitted all well-pleaded facts. Petrauskas v. Wexenthaller Realty Management, Inc. (1989), 186 Ill. App. 3d 820, 825, 542 N.E.2d 902, 905.

On this record, it is undisputed that the automobile of the plaintiffs insured was actually transferred to and accepted by defendant when the vehicle was impounded by the police department at the time of the driver's arrest. It is also undisputed that the vehicle was never returned to the plaintiff’s insured and the defendant exercised exclusive control over the vehicle from the time it was impounded until it was stolen from the police department’s lot.

Defendant argues that plaintiff cannot recover under a bailment theory because it has not established an agreement by its insured and the police department to create a bailment. It has been held, however, that a bailment is a consensual relationship that can be established by express contract or by implication (Kirby, 82 Ill. App. 3d at 1116, 403 N.E.2d at 723; Berglund v. Roosevelt University (1974), 18 Ill. App. 3d 842, 844, 310 N.E.2d 773, 776), and the agreement of the parties to a bailment may be implied in law or in fact (Robinson, 144 Ill. App. 3d at 120, 493 N.E.2d at 1155; Berglund, 18 Ill. App. 3d at 844, 310 N.E.2d at 776; Chesterfield Sewer & Water, Inc. v. Citizens Insurance Co. (1965), 57 Ill. App. 2d 90, 94-95, 207 N.E.2d 84, 86).

A constructive bailment, or a bailment implied in law, may be found where the property of one person is voluntarily received by another for some purpose other than that of obtaining ownership. (Chesterfield, 57 Ill. App. 2d at 93, 207 N.E.2d at 86.) In such cases, the law implies a contract for the keeping of the property until it shall be restored to the owner or his agent, and the contract implied is that of a depositary. Thus, the duty of a depositary is imposed without any actual contract for that purpose. (Chesterfield, 57 Ill. App. 2d at 93, 207 N.E.2d at 86.) The holder is bound to take care of, keep, and preserve the property, not for the sake of any benefit to himself or upon any expectation of compensation for his services, but solely for the convenience and accommodation of the owner. Chesterfield, 57 Ill. App. 2d at 93, 207 N.E.2d at 86.

The court noted in Chesterfield that

“ ‘[w]here, otherwise than by mutual contract of bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, expressed or implied, to such relationship.’ ” Chesterfield, 57 Ill. App. 2d at 94, 207 N.E.2d at 86, quoting Woodson v. Hare (1943), 244 Ala. 301, 303-04, 13 So. 2d 172, 174.

We find that the assertions in plaintiff’s complaint were sufficient to allege a constructive bailment. The complaint asserted that the automobile of the plaintiff’s insured was impounded when the driver was arrested on December 22, 1988. Although the insured demanded the return of the car, the police department was unable or unwilling to return it. The police department exercised exclusive control over the vehicle until it was stolen. Thus, the police department lawfully acquired possession of the vehicle and held it under circumstances whereby it was obligated, under principles of justice, to keep it safely and restore it or deliver it to the owner. See Chesterfield, 57 Ill. App. 2d at 93-94, 207 N.E.2d at 86; City of St. Paul v. Myles (1974), 298 Minn. 298, 300, 218 N.W.2d 697, 699.

We next address defendant’s assertion that the Tort Immunity Act was applicable and precluded recovery by the plaintiff.

Defendant’s motion to dismiss the complaint was predicated upon section 4 — 102 of the Tort Immunity Act, which provides in pertinent part as follows:

“Neither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes, failure to detect or solve crimes, and failure to identify or apprehend criminals.” Ill. Rev. Stat. 1987, ch. 85, par. 4 — 102.

Contrary to the assertions in defendant’s motion to dismiss, plaintiff’s claim was not based upon the defendant’s failure to provide police protection or the failure to detect or prevent the commission of a crime. Rather, the complaint was premised upon bailment, a contractual relationship, and asserted that defendant accepted, exercised exclusive possession of, but failed to return the automobile of the plaintiff’s insured.

The Tort Immunity Act specifically states that it provides local public entities and public employees immunity from liability arising from the operation of government (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101.1) but does not in any way affect the liability of a local public entity or public employee based on contract (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 101). Thus, the Act applies only to tort actions. Firestone v. Fritz (1983), 119 Ill. App. 3d 685, 689, 456 N.E .2d 904, 908.

In construing statutes, the role of the courts is to ascertain and give effect to the intent of the legislature. (Methodist Medical Center v. Taylor (1986), 140 Ill. App. 3d 713, 716, 489 N.E .2d 351, 354; Indian Valley Golf Club, Inc. v. Village of Long Grove (1985), 135 Ill. App. 3d 543, 481 N.E.2d 277.) In doing so, however, the court should not create new rights or limitations not suggested by the statutory language. (Methodist Medical Center, 140 Ill. App. 3d at 716-17, 489 N.E.2d at 354; Jackson v. Navik (1974), 17 Ill. App. 3d 672, 676, 308 N.E.2d 143, 146.) The plain meaning of the language used by the legislature is the safest guide in constructing any act, and the court has no right to read into the statute words that are not found there either by express inclusion or by fair implication. (Indian Valley Golf Club, Inc., 135 Ill. App. 3d at 552, 481 N.E.2d at 283; Illinois Publishing & Printing Co. v. Industrial Comm’n (1921), 299 Ill. 189, 196, 132 N.E. 511.) Additionally, because the Tort Immunity Act is in derogation of the common law, the statute should be strictly construed against the local public entity. Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342, 270 N.E.2d 415, 417; Clark v. City of Chicago (1980), 88 Ill. App. 3d 760, 764, 410 N.E .2d 1025, 1029; Mounce v. City of Lincoln (1978), 64 Ill. App. 3d 461, 463, 381 N.E .2d 421, 422.

Nothing in the language of the Tort Immunity Act provides local public entities or public employees immunity from suit for breach of contract or the failure to return bailed property in good condition. To infer such immunity would be an abuse of the court’s responsibility for statutory construction. (Methodist Medical Center, 140 Ill. App. 3d at 717, 489 N.E.2d at 354.) Consequently, the Tort Immunity Act is inapplicable under the facts at bar, and defendant’s motion to dismiss based upon section 4 — 102 of that act should have been denied.

Defendant argues that plaintiff’s claim must be predicated upon the tort theory of negligence. We find this argument unpersuasive. Plaintiff’s contract action here, predicated upon a bailment, is not transformed into a tort action merely by characterizing the conduct which caused the breach as negligent.

Based upon our resolution of these issues, we need not address plaintiff’s claim that defendant was liable for breach of a special duty owed to its insured.

For the foregoing reasons, the order of the circuit court of Cook County is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE McNAMARA

text:
    THOMAS CARROLL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Consolidated Freightways, Appellee).
    First District (Industrial Commission Division)
    No. 1—90—0417WC
    Opinion filed October 26, 1990.
    Rehearing denied December 20, 1990.

      Krol, Bongiorno & Given, Ltd., of Chicago, for appellant.
    Stevenson, Rusin & Friedman, Ltd., of Chicago, for appellee.
   JUSTICE McNAMARA

Petitioner, Thomas Carroll, an Idaho resident, sought worker's compensation benefits in Illinois for injuries following a work accident suffered in the State of Washington while working for respondent, Consolidated Freightways. The arbitrator found Illinois jurisdiction under United Airlines, Inc. v. Industrial Comm’n (1983), 96 Ill. 2d 126, 449 N.E.2d 119, and awarded petitioner $520 per week for 30 weeks as temporary total disability benefits. The Industrial Commission affirmed the arbitrator’s decision.

Relying on United States Steel Corp., Gary Works v. Industrial Comm’n (1987), 161 Ill. App. 3d 437, 510 N.E.2d 452, the circuit court reversed the Commission’s decision, holding that the Commission’s finding of Illinois jurisdiction was against the manifest weight of the evidence.

On appeal, petitioner contends that the trial court’s denial of Illinois jurisdiction was against the manifest weight of the evidence and contrary to the law under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1(b)(2)).

Petitioner was hired by Consolidated on June 9, 1966, at the Chicago terminal as an over-the-road truck driver for the sleeper team operation. Petitioner was already a member of the Teamsters Union at the time of hiring. Petitioner completed Consolidated’s routine hiring procedures, including filing an employment application, interview, photograph, and physical examination. Consolidated issued petitioner an employee identification number, and he completed a three-week training program at Consolidated’s Akron, Ohio, facility. As an employee of the west sleeper board, petitioner drove to West Coast termináis including Seattle, Portland, Los Angeles and Phoenix.

At the time petitioner was hired in 1966, he resided in Des Plaines, Illinois. Petitioner received Illinois workmen’s compensation benefits in 1967 for a work-related injury which occurred in Indiana. Petitioner moved to Michigan in 1969, but continued to commute to work at the Chicago terminal. Petitioner has not resided in Illinois since 1969.

Consolidated and the union, of which petitioner was a member, instituted a massive change in driver operations in 1970 by converting the sleeper operation to a single-man relay system. As a result of this operational change, 219 of the 311 road driver positions in the Chicago terminal were eliminated. Petitioner was approximately number 150 to 160 on the driver’s seniority list. Bids were awarded based on choice and seniority. Thus, while petitioner could have bid for the Chicago terminal, he was not guaranteed a position. Petitioner also testified that the possibility existed that he would have gone on layoff status if he did not have enough seniority. Following the change of operation, only 92 drivers remained in Chicago.

Petitioner testified that he was presented with a bid list to different Consolidated terminals and that he successfully bid out of the Chicago terminal to North Platte, Nebraska. Consolidated paid for petitioner’s move from Michigan to Nebraska.

Petitioner testified that Consolidated guaranteed he would have a job when he arrived in Nebraska. He also remained a member of the union. Petitioner’s employee number and seniority status remained the same, and he was not required to complete a new application, photograph or physical examination. As a Nebraska resident from 1971 through 1978, petitioner owned a home, voted, paid Nebraska income taxes, and held a valid Nebraska driver’s license.

Consolidated instituted another change in operations in 1978, eliminating 66 of a total of 321 drivers in the Nebraska terminal. Petitioner testified that he could have either remained in Nebraska, or accepted a transfer to Minnesota, North Dakota or Idaho. Petitioner requested Idaho and testified that he was guaranteed a job when he reported to the Idaho terminal. Consolidated again paid for his move from Nebraska to Idaho. Similar to the Nebraska transfer, petitioner retained his employee identification number and seniority status, and was not required to complete a new job application, photograph, or physical examination.

The facts of petitioner’s work injury are undisputed-. Petitioner was injured on March 8, 1988, in Kent, Washington, while trying to unhook a converter dolly from a trailer, striking his head, neck and back. Petitioner subsequently underwent neck surgery and physical therapy. Consolidated paid petitioner’s medical bills and accepted petitioner’s claim for temporary total disability benefits under Idaho law.

Petitioner contends that the trial court erred when it found no basis for Illinois jurisdiction. The Act covers employees who are “in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.1(b)(2).) The place where the last act necessary to give validity to the contract occurs is the place where the contract is made. Youngstown Sheet & Tube Co. v. Industrial Comm’n (1980), 79 Ill. 2d 425, 404 N.E.2d 253.

Petitioner claims that because his contract of hire was executed in Illinois in 1966, Illinois jurisdiction is proper under a contract of hire theory. In addition, petitioner contends that because the only employment application he ever filed with Consolidated was completed in Illinois, his employee identification was issued in Illinois, and his seniority date with Consolidated began in 1966, his employment has been continuous and uninterrupted since that time.

Petitioner maintains that this case most closely resembles United Airlines, Inc. v. Industrial Comm’n. In that case, the court held that Illinois had jurisdiction over a claim where the employment contract was made in Illinois and the claimant had voluntarily transferred to the employer’s facility in California prior to injury. Upon transferring, he did not undergo the same extensive hiring process as when originally hired in Illinois. His employee identification number remained the same, as did his seniority status; and if he failed to successfully complete a 90-day probation period in California, he had the right to resume his former duties in Illinois.

We find, however, that the facts in this claim are distinguishable from those in United Airlines. While the claimant in United Airlines and petitioner here were both hired in Illinois, the employment contract itself is but one factor the court weighs in determining whether Illinois jurisdiction is proper. We find that the trial court properly held the facts in this case most closely follow United States Steel Corp., Gary Works v. Industrial Comm’n.

In United States Steel Corp., the court focused upon whether or not the transfer was voluntary. In that case, the court found there was no Illinois jurisdiction because the transfer was involuntary; the Illinois plant ceased operation, and the petitioner had no right or opportunity to resume his former duties in Illinois under any circumstances. See also Youngstown Sheet & Tube Co. v. Industrial Comm’n, 79 Ill. 2d 425, 404 N.E.2d 253 (no Illinois jurisdiction where Illinois plant permanently shut down, no temporary cessation of work); cf. United Airlines, 96 Ill. 2d 126, 449 N.E.2d 119 (Illinois jurisdiction where employee retained right to return to Chicago); Trans World Airlines v. Industrial Comm’n (1989), 191 Ill. App. 3d 856, 548 N.E.2d 367 (Illinois jurisdiction where employees retained rights of recall and TWA continued operating out of Chicago).

In this case, while Consolidated did not cease operation in Illinois, petitioner had no right of recall back to the Chicago terminal after he transferred to Nebraska. Moreover, petitioner testified that his seniority would not have allowed him to voluntarily transfer to a different location and displace another driver unless there was a national change of operations. Petitioner also testified that he never requested a transfer, nor was he ever given the right or opportunity to come back to Illinois. In addition, petitioner testified that an employee with greater seniority than he had was laid off at the Chicago terminal during the 1970 operational change. We conclude, therefore, that petitioner’s transfer was not voluntary; rather, it was the result of the elimination of a substantial number of driver positions caused by the conversion of the sleeper team to a single-man relay team.

Another relevant factor involves the length of time between the date of injury and transfer. In this case, petitioner’s injury occurred in 1988, approximately 18 years after his transfer to Nebraska, and 19 years since he last resided in Illinois.

In United States Steel Corp., the court held there was no Illinois jurisdiction where the employee was injured 20 years after transfer. See also Youngstown Sheet & Tube Co., 79 Ill. 2d 425, 404 N.E.2d 253 (no Illinois jurisdiction where employee injured 12 years after transfer). Cf. Trans World Airlines v. Industrial Comm’n, 191 Ill. App. 3d 856, 548 N.E.2d 367 (Illinois jurisdiction where one claimant was injured within two months, and the other claimant was injured within 16 months of transfer); United Airlines, 96 Ill. 2d 126, 449 N.E.2d 119 (Illinois jurisdiction where employee injured within two years of transfer).

Petitioner contends that because he was not required to fill out an application or undergo a physical examination when he arrived at the new jobsite, his employment has been continuous and uninterrupted. Petitioner correctly asserts that the court looks at such facts to determine continuity of employment. (See Youngstown Sheet & Tube Co. v. Industrial Comm’n, 79 Ill. 2d 425, 404 N.E.2d 253.) However, that is just one factor, and the court looks to the totality of arrangements for reemployment. Youngstown Sheet & Tube Co. v. Industrial Comm’n, 79 Ill. 2d 425, 404 N.E.2d 253; United States Steel Corf. v. Industrial Comm’n, 161 Ill. App. 3d 437, 510 N.E.2d 452.

We also note that petitioner has failed to maintain “significant contacts” in Illinois. Petitioner has not worked out of an Illinois terminal since 1970, nor has he lived here since 1969. Petitioner’s only contacts with Illinois were visits to family members, which occurred on the average of every two years. Petitioner’s last visit to Illinois prior to the hearing was approximately two years earlier upon the death of his mother.

Petitioner currently resides in Kellogg, Idaho, where he owns 32 acres of property; he also owns four city lots in Eneaville, Idaho. Petitioner has an Idaho driver’s license and pays Idaho State income taxes.

In McCluney v. Jos. Schlitz Brewing Co. (8th Cir. 1981), 649 F.2d 578, aff’d (1981), 454 U.S. 1071, 70 L. Ed. 2d 607, 102 S. Ct. 624, the Eighth Circuit Court of Appeals found the employment relationship’s most significant contacts were in Wisconsin, and not in Missouri, where the original contract of hire had been made 19 years prior to the allegedly wrongful termination and the filing of a statutory action in Missouri. The McCluney court found that apart from the employee’s post-termination move to Missouri, he had no real contact with the State for five years. The court rejected McCluney’s argument that the employment contract was fixed and immutable because it was originally entered into in Missouri.

The court’s rationale in McCluney applies with equal force to petitioner’s claim. The fact that petitioner was originally hired in Illinois in 1966 does not lead to an automatic finding of jurisdiction.

We conclude that the trial court correctly held there was no Illinois jurisdiction over petitioner’s claim. As a result of that holding, we need not reach petitioner’s additional contention that the court erred in computing his average weekly wage. For the foregoing reasons, the judgment of the circuit court of Cook County finding no Illinois jurisdiction is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH and LEWIS, JJ.. concur.