author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY BANKS, Defendant-Appellant (David Bates, Defendant).
    First District (3rd Division)
    No. 1—85—2746
    Opinion filed December 28, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Karen E. Tietz, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Kenneth T. McCurry and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

A jury found defendant, Gregory Banks, guilty of murder and armed robbery of Leon Barkan. Defendant was found not guilty of attempted murder but guilty of aggravated battery of Jeltro Givens. The court sentenced him to concurrent terms of 50 years on the murder conviction, 30 years on the armed robbery conviction, and 10 years on the aggravated battery conviction. On appeal, defendant contends that he should receive a new trial. We agree. We reverse and remand for a new trial.

Defendant is a 21-year-old African-American. He contends that the court erred in denying his motion to suppress his confession because it was procured by police brutality and racial intimidation, and that the court erred in excluding testimony regarding similar coercion of another person by the same police officers.

At the suppression hearing, defendant testified that he was arrested on October 18, 1983, at 8:30 p.m., and taken to the police station. Defendant was taken to an interrogation room and handcuffed to a ring. On the following morning at approximately 2:30 a.m., defendant was taken to another room where he was handcuffed behind his back. Detectives Peter Dignan and Charles Grunhard, and police sergeant John Byrne, interviewed defendant and confronted him with accusations which he persisted in denying. Defendant testified that Byrne put a chrome .45 caliber automatic gun with a brown handle in his mouth and told him that he should blow off his head because he knew what they were talking about. In addition, Byrne struck defendant three or four times across the left side of his chest and stomach with a flashlight while his wrists were handcuffed behind his back. Defendant fell out of the chair, and Grunhard kicked him in his side, stomach and ankle, and hit him on the back of his legs with a flashlight.

When defendant continued to deny knowledge of what the officers were talking about, Dignan said “we have something for niggers,” and he put a plastic bag over defendant’s head. While the bag was on defendant’s head, Grunhard kept kicking him in the stomach and on the left side of his body. Defendant testified that after a minute or two the bag was removed and the three officers left the room. *

Approximately 10 minutes later, the three officers returned and asked defendant what he was going to do. Defendant again denied knowledge of the occurrence, and Dignan placed the plastic bag over defendant’s head a second time for about two minutes. Thereafter, defendant confessed and informed the officers that the gun that was used in the occurrence was at 56 W. 95th Street in Chicago. At 4:30 a.m., defendant accompanied the officers to that location.

Defendant testified that at 56 W. 95th Street, the officers handcuffed him to a bar on the stairwell, while they recovered a gallon of liquid narcotics from the second-floor landing, and the gun on the roof of the building. According to defendant, he did not try to escape and was neither tackled nor struck after he confessed and the gun was recovered.

During the hearing on the motion to suppress, the State introduced the testimony of eight police officers and an assistant State’s Attorney who were involved in investigating the case. All of the State’s witnesses denied involvement in or knowledge of defendant being beaten, except Dignan, who testified that he punched defendant several times.

Detective John Gallagher and William Egan testified that they arrested defendant on October 28, 1983, at 8:30 p.m., handcuffed him and took him to the police station. Detective Charles Grunhard testified that he, Byrne and Dignan spoke with defendant at 4:30 a.m. on October 29. Byrne testified that after that conversation, at about 5:30 a.m., Byrne and Dignan took defendant, without handcuffs, to 56 W. 95th Street, where they recovered a gun that was on the roof and a container of liquid narcotics from the second-floor rear porch. Byrne testified that defendant then tried to escape by running down the porch stairs. Defendant was not handcuffed at the time.

According to Bryne, Dignan tackled defendant right at the bottom of the stairs and defendant fell on flat concrete with Dignan on top of him for the most part. Byrne testified that Dignan dove on defendant when he tackled him. Byrne and Dignan then handcuffed defendant. Byrne testified that at no time did he or any detective in his presence strike the defendant. Byrne also testified that he did not specifically recall being accused of participating in a beating with a flashlight and the placing of a plastic bag over the head of another person in September of 1982. Byrne did not make, sign or review any reports relating to the investigation of the present case. However, he may have signed Dignan’s injured on duty report.

Dignan completed an injured on duty report reflecting an injury to his left leg from a brief scuffle when defendant attempted to escape, but Dignan failed to report defendant’s escape attempt or his or defendant’s injuries on any other police report. Although Dignan visited a hospital the day after the incident for the injury to his leg, he did not take any time off from work because of the injury. Dignan testified on direct examination that after defendant attempted to run down the stairs, he grabbed him and they went down the stairs. They wrestled, and defendant was subdued. Defendant was then handcuffed. Dignan also testified on direct examination that at no time did he or any other detective in his presence strike defendant.

On cross-examination, Dignan testified that defendant started running down a set of stairs that was more than 5 but less than 15 stairs. Dignan took a couple of steps down the stairs and grabbed defendant, and they went down onto the next landing. Dignan “more or less tackled him,” and they rolled over each other sideways. Dignan testified that they were on the third-floor landing when defendant ran down the stairs, and they ended up on the next landing. Dignan also testified on cross-examination that after he and defendant ended up on the next landing, Dignan “punched him a couple of times.” He testified: “I punched him a couple times. I don’t know where I punched him. I was just swinging.” When Dignan was asked if defendant punched him at that time, Dignan testified: “I got an elbow in the face.” Immediately afterward, according to Dignan, defendant was handcuffed. Dignan also testified that it was very possible that he placed the handcuffs on defendant rather tightly at that time, and that defendant might have complained about the handcuffs being too tight at the scene or on the way back to the station. Dignan did not recall anyone raising similar allegations of coercion against him or Byrne.

Detective Robert Dwyer testified that he spoke with defendant at 11:30 p.m. on October 29, 1983, and was present the following morning at 3:20 a.m. when defendant gave a confession statement to Assistant State’s Attorney Dean Bastounes and a court reporter. This statement was given approximately 31 hours after defendant was arrested. According to Bastounes, defendant did not complain that he had been threatened, beaten or mistreated by the police. Bastounes did not notice any injuries or bruises on defendant, but admitted that he had not examined him.

Dr. Walter Romine testified that on November 3, 1983, he examined defendant pursuant to his duties at Cermak Hospital. Dr. Romine testified that defendant complained that the police had beaten him and placed a bag over his head. Dr. Romine’s examination revealed that defendant had lacerations with scabs on both wrists, consistent with handcuff injuries. Also, defendant had multiple scrapes and scratches over his chest and abdomen. He had a bruised, swollen muscle on his left side, and some kind of a lump under his skin in the lower left rib cage. The whole area was swollen, discolored and tender. There was also a large area of swelling, tenderness and discoloration below each buttock; somewhat lateral. Defendant also had some scratches or scrapes around one of his ankles. In addition, he had a bruise on both legs in the upper posterior section of the upper thigh below the buttocks.

Dr. Romine testified that defendant’s injuries “were consistent ■with the story” that he told him. Dr. Romine also testified: “It looked like he was struck several times with something, some blunt object.” In addition, Dr. Romine testified that defendant had a bruised chest, and that he was struck with some kind of a blow in that area to get that kind of injury. Dr. Romine testified that “some object struck him there.”

When Dr. Romine was asked if defendant’s injuries were consistent with a fall or tumble down a flight of stairs, he answered: “I don’t think so.” According to Dr. Romine, defendant’s injuries were from two to seven days old and consistent with the defendant’s statements as to how he was injured. Therefore, Dr. Romine reported the alleged police abuse to the hospital’s medical director.

On cross-examination, when Dr. Romine was asked if defendant’s injuries would be consistent with falling down stairs, he answered, “No.” Dr. Romine testified that the injuries were not consistent with a fall down stairs because there were no injuries to bony prominent areas, such as the pelvis, knees, top of the head or spine. On cross-examination of Dr. Romine, the following occurred:

[PROSECUTOR:]
“Q. Well, Doctor, let me give you a hypothetical. If the defendant were tackled or the patient was tackled, would these injuries be consistent with a tackling, falling to the ground?
A. I would say more so if he were handcuffed, but normal protective reflexes could tend to cause most injuries to be under extensive circumstances and put on the surface of the chest, because—
Q. I understand that, but it’s possible, is it not?
A. Yes.”

With reference to the above testimony, we note that both Byrne and Dignan testified that defendant was not handcuffed when he was tackled and fell down stairs or to the ground.

In addition, at the suppression hearing the parties stipulated that a person named Lee Holmes would testify to similar complaints of coercion by Byrne and Dignan 13 months prior to defendant’s arrest in the present case. After the suppression hearing, the court denied defendant’s motion to suppress his confession, and the confession was subsequently admitted into evidence at trial. Also, the court granted the State’s motion in limine barring any reference at trial to prior complaints of coercion by Byrne or Dignan.

In reviewing this case, we bear in mind that in a criminal case the police are considered part of the prosecution team. Thus, when there is a motion to suppress because of alleged police coercion or racial intimidation, the trial judge must maintain a conscious awareness that the testimony of police is not to be viewed in isolation as if they have no interest in the outcome of the case. Rather, the testimony must be examined by the trial judge with the same scrupulous eye that one would expect the trial judge to use to assay the testimony of a party to the lawsuit.

Also, the trial judge must keep in mind that ours is an adversary criminal justice system, and there must not be any naivete that it is otherwise. The stark realities of our adversary criminal justice system are such that what occurs within the confines of a police station during custodial interrogation when there is no attorney present is not always what the unsophisticated would expect. (See Miranda v. Arizona (1966), 384 U.S. 436, 448-58, 16 L. Ed. 2d 694, 708-14, 86 S. Ct. 1602, 1614-19; Brewer v. Williams (1977), 430 U.S. 387, 399, 51 L. Ed. 2d 424, 436-37, 97 S. Ct. 1232, 1240.) It follows that when it is evident that a defendant has been injured while in police custody, as is true in the present case, the State must show by clear and convincing evidence that the injuries were not inflicted as a means of producing the confession. This means that something more than a mere denial by the police of coercion and racial intimidation is required to deny the motion to suppress. People v. Wilson (1987), 116 Ill. 2d 29, 35, 506 N.E.2d 571, 575.

Here, Doctor Romine testified that when he examined defendant on November 3, 1983, he found that defendant’s injuries were consistent with defendant’s testimony that he was beaten and struck with a flashlight and kicked in the stomach, side and ankle. He testified that it looked like defendant was struck several times with a blunt object. In addition, Doctor Romine testified that defendant’s injuries were not consistent with falling down stairs. On cross-examination, Doctor Romine testified that while it was possible for the injuries that he observed to be consistent with being tackled and falling to the ground, it would be more likely so if defendant had been handcuffed at the time. Since Byrne and Dignan both testified that defendant was not handcuffed when he was tackled and fell down stairs, Doctor Romine’s testimony, and hence the only medical testimony in the case on the issue, plainly supports defendant’s version of how he was injured. As to the police officers’ testimony that defendant was not handcuffed when he attempted to escape while on the rear porch of the building at 56 W. 95th Street, there is no explanation in the record why defendant was not handcuffed at that time, but yet was handcuffed when he was arrested and when he was at the police station in custody. Defendant testified that he was in handcuffs while he was on the porch and at the 56 W. 95th Street building.

Despite the medical testimony supporting defendant’s claim that police brutality was used to obtain his confession, the State essentially relied on mere denials of coercion by the police officers. This was plainly not sufficient to establish by clear and convincing evidence that defendant’s injuries were not inflicted as a means of producing the confession. Since the State failed to show by clear and convincing evidence that the confession was not the product of coercion, defendant’s confession should have been suppressed as having been involuntarily given. (Wilson, 116 Ill. 2d at 35.) Moreover, in our system of government, the use of a defendant’s coerced confession as substantive evidence of his guilt cannot be considered harmless error. This case must therefore be remanded for a new trial. Payne v. Arkansas (1958), 356 U.S. 560, 568, 2 L. Ed. 2d 975, 981, 78 S. Ct. 844, 850; Rose v. Clark (1986), 478 U.S. 570, 577-78, 92 L. Ed. 2d 460, 470, 106 S. Ct. 3101, 3105-06.

We believe that this case is another reminder of the grave responsibility that trial judges have and must be willing to exercise when ruling on motions to suppress based on charges of police brutality and racial intimidation. If our constitutional rights and guarantees are to be in fact enjoyed equally by all our citizens, trial judges must ensure that those suspected of crimes do not relinquish their constitutional rights and guarantees solely because they become matched up against an uncaring or overzealous law enforcement officer who may be bent on obtaining a confession without regard to the suspect’s constitutional rights and guarantees. In this regard, trial judges must bear in mind that while we no longer see cases involving the use of the rack and thumbscrew to obtain confessions, we are seeing cases, like the present case, involving punching, kicking and placing a plastic bag over a suspect’s head to obtain confessions. See Wilson, 116 Ill. 2d at 35 (defendant was granted a new trial on. thé basis that he was punched, kicked, smothered with a plastic bag, electrically shocked, and forced against a hot radiator throughout the day until he gave his confession).

When trial judges do not courageously and forthrightly exercise their responsibility to suppress confessions obtained by such means, they pervert our criminal justice system as much as the few misguided law enforcement officers who obtain confessions in utter disregard of the rights guaranteed to every citizen — including criminal suspects — by our constitution. Moreover, trial judges must be most circumspect when it appears that a right guaranteed to every citizen by our constitution may have been violated by police brutality or racial discrimination, for those affected are invariably the poorest, the weakest and the least educated, who are not sophisticated enough or do not have the resources to see and ensure that they are not denied the protections afforded by the rights and guarantees of our constitution.

We next address the State’s motion in limine to bar any reference at trial to prior similar complaints of coercion having been made against Byrne and Dignan. Although this issue may not arise in the new trial, we believe it is so closely related to the wrongful admission of defendant’s confession into evidence that it warrants our consideration here.

At the suppression hearing, the parties stipulated that Lee Holmes would testify that on September 10, 1982, 13 months prior to defendant’s arrest in the present case, Byrne and Dignan beat Holmes with a flashlight and put a bag over his head while he was being interrogated after being arrested. The parties further stipulated that Holmes received medical treatment that same day for injuries to his arm and leg, and that Holmes filed a complaint against Byrne and Dignan with the Office of Professional Standards. However, the State made a motion in limine to bar any reference at trial to the prior complaints that were made against Byrne and Dignan, and the motion was granted. As a result of the trial court’s ruling on the motion in limine, at trial defendant was precluded from making any reference to what Byrne and Dignan had allegedly done to Holmes 13 months prior to defendant’s arrest in the present case. We believe the trial court’s ruling was erroneous.

We believe evidence that the same police officers, Byrne and Dignan, beat another suspect with a flashlight and put a bag over his head while being interrogated after being arrested is relevant in the present case. Plainly, such conduct is an aberration from the conduct of other police officers. Thus, such evidence tends to show the conduct that these two police officers employ in interrogating suspects who are in custody, and such evidence is therefore probative as to the conduct they employed in the present case to obtain defendant’s confession. Since the evidence of the prior conduct of the police officers tends to prove an issue at trial, it was relevant and should have been admissible.

The trial court’s conclusion that the 13-month lapse between the two incidents made the prior incident too remote to be admissible at trial is without merit. We believe it is plain that a 13-month period between virtually identical incidents of brutality by police officers is not too remote to tend to prove the type of conduct used by. the particular police officers when interrogating suspects after arrest. We therefore conclude that the trial court erred in granting the State’s motion in limine.

We next address the defendant’s contention that the trial court erred in refusing to give the jury his tendered instruction on involuntary manslaughter. The facts of the occurrence are disputed. Jeltro Givens was a witness for the State. He testified that on October 27, 1983 at 11 p.m., he and the victim, Leon Barkin, went to the home of Kenny Taylor. Barkan telephoned Jerry Caldwell, and Caldwell arrived at Taylor’s home 10 minutes later. Caldwell spoke with Barkan and left. Thereafter, Caldwell returned with a gallon of cough syrup and codeine, and poured a glass for Taylor. Forty-five minutes later, Caldwell, Givens, and Barkan left Taylor’s house, with Barkan carrying the bag with the syrup and codeine.

After they walked past two houses, according to Givens, two men wearing ski masks jumped out of the bushes approximately 10 feet away from them. One of the men wearing a ski mask pointed a gun at Barkan. While Givens ran across the street, the man shot in Barkan’s direction two or three times. Barkan dropped the bag with the syrup and codeine, and fell to the ground. Givens turned, started running and heard bullets ricocheting. Givens was hit in the right thigh and fell. While on the ground, he saw the second man grab the bag and run. When Givens was questioned by police officers at the scene, he did not say anything about anyone wearing a ski mask.

Defendant testified that while at work on October 27, 1983, at 7 p.m., he received a phone call from Barkan, who wanted to meet him after work. After work, defendant waited for Barkan outside of Taylor’s house because defendant and Taylor were not on friendly terms. When Barkan, Givens and Caldwell emerged from Taylor’s house, Barkan told defendant that he had two gallons of syrup and codeine. Defendant responded that he had given Caldwell enough money for five gallons and asked for the difference.

Defendant testified that he and Barkan started arguing. As the argument continued, defendant pulled out a gun. Barkan jumped at the gun, and the two of them scuffled over the gun. During the scuffle the gun went off. Defendant testified that he fired the gun three times. Defendant testified that when he pulled the trigger the gun was pointed at the ground, and that when the gun fired, Barkan fell backward. Givens then moved toward defendant, so defendant fired toward Givens to “brush him off.” The bullet hit Givens in the right leg. Defendant then picked up the bag and went to his mother’s house. He was subsequently arrested.

Dr. Lee Beamer, a certified forensic pathologist with the Cook County medical examiner’s office, testified for the State. He testified that he performed an autopsy on Barkan and observed that the decedent had projectile wounds of the right thigh, left thigh and hip area. Dr. Beamer also testified: “On the posterior-lateral, or backward aspect of the left thigh there was a projectile wound of entrance. This wound did not exit. The projectile was found within the body.” According to Dr. Beamer, the projectile wound in the left thigh was directed towards the deceased’s front, towards his right and slightly upward.

With respect to the left thigh wound, Dr. Beamer also testified: “There was no evidence of stippling or powder on the skin. It would be my opinion it was fired from a distance greater than weapons that type would leave stippling, which is greater than three feet.” In addition, Dr. Beamer testified: “The wound that entered the deceased’s left thigh, I found to have gone through the abdominal cavity, through the pelvis, through the abdomen, a portion of the mesentery and to have lacerated the deceased’s right common iliac artery.”

Dr. Beamer also testified that there was another entrance projectile wound in the posterior-lateral right thigh. The track of that wound was toward the front, toward the left and slightly upward. According to Dr. Beamer, based on the track of that wound, the wound is consistent with a person turning slightly away with his right foot slightly in back of the left foot.

Based on the disputed facts which we have stated, the court instructed the jury on murder, felony murder and armed robbery with respect to Barkan, and aggravated battery and attempted murder as to Givens. The court refused defendant’s tendered instruction on involuntary manslaughter as to Barkan. Defendant argues that the court erred in refusing to give the jury an instruction on involuntary manslaughter. We agree.

A person commits the offense of involuntary manslaughter when he unintentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another. (Ill. Rev. Stat. 1987, ch. 38, par. 9—3; Illinois Pattern Jury Instructions, Criminal, No. 7.07 (2d ed. 1981).) Murder and the lesser included offense of involuntary manslaughter are distinguished only in terms of the mental state required. Murder requires the intent to kill or do great bodily harm or knowledge that the acts create a strong probability of such result, while involuntary manslaughter requires only reckless conduct which causes death. (People v. Cowen (1979), 68 Ill. App. 3d 437, 441, 386 N.E.2d 435, 438-39.) If there is some evidence in the record which would reduce the crime to involuntary manslaughter, the defendant is entitled to an instruction defining the lesser offense. People v. Santiago (1982), 108 Ill. App. 3d 787, 802, 439 N.E.2d 984, 994.

It is defendant’s theory that he and the decedent started scuffling over a gun defendant pulled out during an argument. The gun went off during the scuffle. Defendant fired the gun three times. Defendant testified that he fired the gun when it was pointed at the ground, and the decedent fell backward. Givens testified that he heard two or three shots, the ricocheting bullets. Although there were no powder wounds on the decedent’s skin, Doctor Beamer’s testimony is such that one might conclude that the trajectory of the bullets was upward, which would support a theory that the bullets that hit the decedent ricocheted upward from the ground.

Surely, one does not point and fire a gun at the ground if he intends to kill someone. Under the circumstances, we believe that there was some evidence, if believed, that defendant unintentionally caused the death of the decedent by acts which were performed recklessly and likely to cause death or great bodily harm. We therefore conclude that defendant was entitled to an instruction defining the offense of involuntary manslaughter. At the new trial, if the evidence on the issue is at least the same, defendant should be entitled to have the jury instructed on the offense of involuntary manslaughter.

Defendant also contends that he should receive a new trial because of the State’s use of peremptory challenges to exclude African-Americans in violation of the Constitution, the State’s prejudicial references to other crimes, and the admission of evidence that defendant had been implicated by an occurrence witness who did not testify. Also, defendant contends that the court erred when it failed to consider mitigating factors in sentencing, and in imposing extended terms for the murder and aggravated battery convictions. In view of our holding that the judgment must be reversed and the case remanded for a new trial on the issues we have discussed, we do not address the other errors alleged by defendant.

Accordingly, the judgment of the circuit court on the convictions of murder, armed robbery and aggravated battery is reversed, and the case is remanded for a new trial.

Reversed and remanded for a new trial.

FREEMAN, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD LEMONS, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—3171
    Opinion filed December 28, 1989.
    Rehearing denied January 22, 1990.

      Michael J. Pelletier and Nan Ellen Foley, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Edward Lemons, was charged with burglary and possession of burglary tools. Following a jury trial he was convicted of burglary and acquitted of possession of burglary tools. He was sentenced to 20 years’ imprisonment.

On appeal, Lemons challenges the admission of what he characterizes as hearsay identification testimony. He also asserts that the trial court deprived him of a fair trial by instructing the jury that a witness’ prior inconsistent testimony could only be considered for impeachment purposes and not as substantive evidence. He further argues that the trial court made a comment that, in effect, adopted the State’s version of the case and assumed his guilt. Finally, Lemons challenges the sentence as exceeding the statutory ceiling for an extended term. On this last point, the State concedes that 14 years is the maximum term that Lemons can be sentenced to under the relevant law.

We affirm the conviction and reduce the sentence to 14 years’ imprisonment.

Background

In the early morning hours of February 17, 1987, Michael McCall left his apartment to investigate after a neighbor told him someone was burglarizing his mother-in-law’s 1971 Chevrolet Impala. He observed the back of a man bent over the steering wheel, noting that he wore a dark, dirty jacket and a half-torn sweatshirt. McCall went back inside his apartment and telephoned police. Shortly thereafter, he saw police cars arrive and saw a man running down an alley.

Officers Michael Decker and Robert Weisskopf arrived on the scene. Weisskopf heard a scraping sound from across the street and slightly behind the burglarized car. He ordered the person to come out from underneath the car. The person was Lemons, who appeared to be intoxicated. Weisskopf found no weapons on him but he did recover a woman’s glove, a man’s glove, and some tools and a flashlight.

McCall and Officer Decker inspected the Impala for damage, noting that a small piece of the steering column was missing and that there were scratch marks on the left side. McCall testified that he noticed tools on the floor of the car, some of which were his and others which were not. Some of his were missing. He also found two children’s coats that were not his, one of his wife’s gloves, and one man’s work glove.

At trial, Weisskopf testified that the two gloves he took from defendant matched two that were in McCall’s car. The woman’s glove was identified as belonging to Theresa McCall. Weisskopf also testified that McCall told him he saw two offenders.

At the preliminary hearing McCall testified first that he saw the police recover the glove from Lemons but admitted that he did not actually see the police take the gloves from Lemons. He stated that he did not have personal knowledge that Lemons was in possession of them. At trial he testified that as Weisskopf led Lemons to the squad car, Weisskopf turned toward Lemons, took something from him, and then showed McCall the woman’s glove. Defense counsel sought to have McCall’s prior statements admitted as substantive evidence. The court refused a modified jury instruction, however, and allowed the statements to be considered only in assessing McCall’s credibility.

Lemons did not testify in his own behalf because his motion in limine to bar use of prior convictions was denied. He presented two defense witnesses, his brother-in-law and a female friend. Sonny Chambers testified that he was with Lemons all day before the incident and that during the approximate time of the burglary, he and Lemons were driving around looking for the address of someone Chambers knew. Lemons jumped out of the car and said he was going to catch a bus because of an argument they were having. Shortly thereafter Chambers heard an alarm, someone hollering, and two gunshots. He saw two people running on the opposite side of the street from where he was and got out of the car to look for Lemons. t

Anna Sanders testified that after his arrest Lemons asked her to take pictures of the burglarized car and six of these were submitted to the jury.

The jury found Lemons not guilty of possession of burglary tools but guilty of burglary of an automobile. The court sentenced him to an extended term of 20 years in prison.

Opinion

I

Lemons first challenges as plain error the admission of Officer Weisskopf’s statement that when he pulled Lemons out from under the car across the street from McCall, McCall said, “That is him.” He contends that McCall did not specifically identify Lemons as the person he saw burglarizing the car. Instead, he testified that the man he saw was big and muscular, and that he did not see Lemons until the police brought him out from under the car across the street. According to Lemons, Weisskopf’s statement violated his sixth amendment right to confront witnesses. He asserts that he was wrongly denied the opportunity to cross-examine the declarant, whose statement was offered to prove the truth of the matter asserted, citing People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223. In Rogers the court held that a third person may not testify as to a witness’ identification of the defendant, unless the witness himself first testifies as to his out-of-court identification and is subject to cross-examination.

The State counters that the legislature abridged the rule in Rogers by the enactment of section 115 — 12, of the Code of Criminal Procedure of 1963, which addresses substantive admissibility of prior identification. The section provides:

“A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.” Ill. Rev. Stat. 1987, ch. 38, par. 115—12.

In People v. Holveck (1988), 171 Ill. App. 3d 38, 52, 524 N.E.2d 1073, 1083, the court noted that “in response to Rogers the Illinois legislature enacted section 115 — 12.” The Holveck court held that “by the plain terms of this enactment the substantive use of testimony concerning out-of-court identifications is now permissible without regard to the existence of an in-court identification.” (171 Ill. App. 3d at 52, 524 N.E.2d at 1083.) The court also quoted an excerpt from the Handbook of Hlinois Evidence, which included this comment on the admissibility of out-of-court identifications:

“[Pjrovided the declarant testify at trial and be subject to cross-examination concerning the prior statement of identification of a person made after perceiving him, *** declarant’s prior statement of identification is admissible as substantive evidence when testified to by a witness to the identification, such as a police officer, even when the declarant at trial denies making or repudiates the identification and denies that the defendant was involved in the crime.” E. Cleary & M. Graham, Handbook of Illinois Evidence §611.16 at 405-06 (4th ed. 1984).

In the pending case, McCall described the man he saw in the automobile, whose face he could not see. He assumed that the man under the car across the street, Lemons, was the same man that he had seen in the Impala very shortly before. Lemons is big and muscular, as was the man he saw in the car. Lemons’ clothing matched the description of the clothes of the man McCall saw in the car. In this context, Weisskopf’s testimony that McCall said, “That is him” when he saw Lemons may be viewed as an inference McCall made at the time that the man he had just seen in the Impala was the same man the police apprehended at the scene of the crime. Therefore, McCall’s statement to Weisskopf qualifies, under section 115 — 12(c), as a prior “statement of identification of a person made after perceiving him.” The rule does not require that the person making the identification have a full face view of the offender. McCall did testify at trial and was subject to cross-examination as to his ability to identify Lemons. If the defense wished to have McCall recalled after Weisskopf’s testimony, to cross-examine McCall on the statement attributed to him, it could have done so. Defendant had previously cross-examined McCall to emphasize that McCall did not see the face of the man in the car, that the lighting was poor, and that his identification of Lemons was limited to his being the one the police apprehended at the scene. Of course, if the defense asked McCall about his purported statement to Weisskopf and he admitted making the statement to Weisskopf, it would hurt Lemons’ case. As it stood, defendant had the opportunity in closing argument to impugn Weisskopf’s credibility by pointing out that McCall never admitted on the stand to recognizing Lemons as the same man he saw earlier in the car. Accordingly, we believe that any error in the admission of Weisskopf’s statement is harmless.

II

Lemons next argues that he was denied a fair trial because the court instructed the jury that certain statements made by McCall would only be considered for impeachment value and not as substantive evidence. Specifically, he refers to McCall’s inconsistent remarks concerning whether or not he saw the police actually remove the glove from Lemons. At trial, McCall testified that as the police led Lemons to the squad car, Weisskopf turned to Lemons and then showed McCall a glove exactly like his wife’s. On cross-examination he said he saw the police “turn around toward the gentleman, take something from him, turn back around and show [McCall] the glove.” According to Lemons, these trial statements are contradicted by the preliminary hearing testimony of McCall’s. When asked if he saw the police take the gloves off Lemons, he replied, “No, I didn’t.” He was then asked if he knew from personal knowledge if Lemons was in possession of the glove and responded, “No, I don’t.”

We do not find that the trial testimony and that given during the preliminary hearing are actually contradictory. During the preliminary hearing he identified Lemons as the perpetrator, testifying that he saw him in the car. He admitted that he did not see the man’s face, but he described his clothes. He also stated that he was present when the police pulled Lemons out from another car. He testified that he saw the police recover the glove from Lemons, but on cross-examination he admitted that he did not actually see the police remove the glove from Lemons. He clarified this on redirect by stating that he was behind Lemons and the officer and that the officer got something that he showed McCall, which was the glove. McCall testified that he did not know whether they took it from his pocket and did not directly observe from where the glove was taken.

The trial court determined that, to the extent McCall’s statements were inconsistent, the jury would be allowed to consider them as impeaching McCall’s credibility. Nevertheless, he refused an instruction that would have allowed the prior statements to be admitted as substantive evidence.

We find this to be well within the trial court’s discretion, particularly since the use of the testimony as either impeachment or substantive evidence would tend to have the same result: either he directly saw the glove being removed from Lemons (which he admitted he did not), or he indirectly saw it being removed from Lemons (which seems to be the meaning of his statements, taken together). In other words, the difference in the statements is whether he knew, from direct observation, that Lemons had the glove or whether he inferred from the circumstances that the police took the glove from Lemons. We see no prejudice resulting from the court’s ruling. In considering the statements the jury could have doubted McCall’s perception of the events; found that he was disingenuous; or determined that McCall simply did not have personal knowledge that the police took the glove from Lemons. That would not translate, however, into substantive evidence that the police did not take the glove from Lemons. We conclude that Lemons was not denied a fair trial as a result of the court’s ruling on this issue.

Ill

Lemons’ third'argument in support of his request for a new trial concerns a comment that the judge made during examination of Officer Weisskopf. The State was attempting to elicit testimony as to why the officer had not searched for a possible second offender, who was never apprehended. McCall had earlier testified that he saw a person running down the alley at the time the police cars were arriving on the scene. The court had sustained defendant’s objection to the State’s attempt to ask McCall whether he thought the person running down the alley was the “lookout.” When defendant objected to the questioning of Officer Weisskopf regarding why he did not search for the second person, the court told the State, “That is enough of that. That is enough.” The prosecutor then said he had no further questions, and the court stated, in the jury’s presence, “I think the second offender allegedly escaped, whoever it was.” The prosecutor replied, “Right.”

Lemons now charges that this isolated comment was “a blatant adoption of the State’s theory of the case.” According to the defense, if the person seen running down the alley was relevant at all, the jury was faced with deciding one of only two alternatives. Either Lemons was innocent, because one person committed the burglary and escaped, or Lemons was guilty because two people were involved in the burglary and one got away. The judge’s comment, according to Lemons, is a “de facto determination of Edward Lemons’ guilt” because he adopted the State’s theory of two offenders.

We cannot agree with defendant’s interpretation. It is true that judicial comments indicating personal belief or disbelief in the credibility of witnesses are improper because they invade the jury’s province. (E.g., People v. Marino (1953), 414 Ill. 445, 111 N.E.2d 534.) In the pending case, however, there was testimony regarding someone other than Lemons seen fleeing down the alley at the time the police were arriving. The State’s theory did not depend on the existence of a second offender because McCall’s testimony and the recovery of the glove were sufficient to establish Lemons’ guilt as the person inside of the burglarized automobile. If anything, the existence of a second potential offender gave the defense a better argument: that other person was the sole offender, or at least created a reasonable doubt that the man responsible for the burglary was Lemons. Accordingly, we fail to see how the court’s comment, made in the context of the State’s questioning a witness as to the existence of a second offender, prejudiced Lemons. The one word in the comment that may be objectionable is “offender,” and the word “allegedly” suggests that the court was using the State’s theory hypothetically, rather than adopting it as a reflection of its own belief. Had the court said the “other man” instead of “offender,” Lemons would have no argument at all.

Moreover, we note that Lemons’ attorney did not object to this statement when made. This is not a situation where such an objection would likely antagonize the court to the detriment of the defendant, either, as was an issue in People v. Sprinkle (1963), 27 Ill. 2d 398, 189 N.E.2d 295. Here, had defense counsel requested the court during a side bar to clarify his'comment to the jury and expressly disclaim any personal belief as to the existence of such “second offender,” any misapprehension would have been cured. We conclude that the comment did not deny Lemons a fair trial and that by failing to object and give the court an opportunity to clarify the remark, he waived the argument. See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

IV

As a final matter, the State concedes that Lemons was incorrectly sentenced to a term of 20 years, as an extended term. Under the law in effect at the time Lemons was convicted of burglary of an automobile, the extended term allowable for the offense was 14 years. Accordingly, we reduce the sentence imposed to 14 years.

For the foregoing reasons, we affirm the conviction of Edward Lemons and modify the sentence.

Affirmed as modified.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE LINN PRESIDING JUSTICE JIGANTI,

text:
    HOWARD J. SHAPIRO et al., Plaintiffs and Counterdefendants-Appellants and Cross-Appellees, v. REGENT PRINTING COMPANY, Defendant and Counterplaintiff-Appellee and Cross-Appellant.
    First District (4th Division)
    No. 1—88—1812
    Opinion filed December 28, 1989.

      JIGANTI, P.J., dissenting.
    Deutsch, Levy & Engel, Chartered, of Chicago (Paul M. Levy, Scott B. Greene, and Terese Keirnan-Shust, of counsel), for appellants.
    McBride, Baker & Coles, of Chicago (N.A. Giambalvo, Steven B. Varick, Malcolm H. Brooks, and Darryl C. Porter, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Howard J. Shapiro and Aria Graphics, Inc., plaintiffs, appeal from an order that enjoined them for two months from doing business with certain customers of Regent Printing Company, after Shapiro resigned from his employment with that company. Regent cross-appeals, contending that the restrictive covenant in Shapiro’s employment contract is valid and enforceable and that, accordingly, an injunction for the contractual two-year period should have been entered.

For the reasons that follow, we dismiss the appeal on grounds of mootness.

Background

Howard Shapiro worked for Regent Printing Company for approximately seven years. The printing business is owned equally by its founder’s three sons, Lester, William, and Delbert. Howard is Delbert’s son.

Howard had no prior experience in the printing business before joining Regent in 1981. For the first two years he was trained in printing production techniques in preparation for his becoming a salesman.

Toward the end of 1982 Howard and Regent negotiated an employment agreement, which contained a two-year restrictive covenant. At trial Howard stated his belief that he would be discharged if he did not sign the contract.

The purpose of the restrictive covenant was to prevent Howard from divulging to others or using for himself any “information, knowledge, data or property related to Regent’s business obtained while employed by Regent.” The provision further required him to abstain from “soliciting] or accepting] orders or business from any of Regent’s customers who were customers of Regent during the one year period prior to the date of [Howard’s] termination of employment with Regent.”

Howard resigned from Regent in February 1988 and immediately began working for ARLA, one of Regent’s competitors. He initiated the pending action after Regent notified certain customers that Howard was contractually prohibited from doing business with them. Plaintiffs’ three-count complaint sought injunctive relief against Regent as well as compensatory and punitive damages for interfering with business expectancies. In addition, Howard sought an accounting for commissions alleged to be owing to him.

Regent countersued, alleging breach of contract on the part of Howard, conspiracy to breach and intentional interference with contract on the part of ARLA, and overpayment of commissions to Howard.

Although both sides moved for preliminary injunctive relief, Howard withdrew his motion, and the matter proceeded on Regent’s motion for injunction to enforce the restrictive covenant.

After an evidentiary hearing the trial court determined that a short-term injunction was appropriate, based on the theory that Howard had breached his fiduciary duty to Regent because he had solicited customers for ARLA before leaving Regent. The court cited evidence indicating that Howard had solicited customers during the last week that he was in Regent’s employ. However, Regent had not raised this theory in its pleadings, nor relied on it at the hearing. Regent was given leave to file amended pleadings after the hearing, to conform to the evidence by adding the breach of fiduciary duty cause of action.

In its ruling the court declined to fully analyze the reasonableness and scope of the restrictive covenant, finding instead that the covenant lacked sufficient consideration. Therefore, the court denied Regent’s motion for preliminary injunction based on the two-year restrictive covenant. Nevertheless, the court granted the short-term injunction as an equitable remedy for Shapiro’s breach of fiduciary duty. The court initially granted a 90-day injunction, to allow Regent to “catch up” or regain its competitive edge. After the parties’ motions to reconsider, the court shortened the duration of the injunction to 60 days.

On appeal, Howard challenges the court’s order on the ground that he was denied an opportunity to present a defense on the breach of fiduciary duty issue. Regent cross-appeals from the order, contending that the restrictive covenant is valid and should be enforced for the full contractual period.

Opinion

We initially find that the injunction entered on May 9, 1988, was permanent in nature, despite some confusion in the briefs as to whether the injunction order was intended to be for preliminary relief. The distinction is critical to our ruling, as we explain below. Howard argues that the injunction is permanent in nature and effect. Regent, however, asserts that it was a preliminary injunction from which Howard should have appealed pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307). This rule governs interlocutory appeals as of right and requires that notice of appeal be filed from the injunction order within 30 days of its entry. This was not done.

Although the trial court commented on several occasions that the proceedings were for preliminary injunctive relief, the order entered grants a permanent injunction because it concludes the rights of the parties with respect to the injunction remedy. Regent did not move for any further hearings on permanent injunctive relief, and neither side sought interlocutory review under Supreme Court Rule 307. The trial court transferred the law counts of the complaint and counter-complaint to the law division and entered an express finding that the granting of the injunction was a final order from which there was no just reason to delay enforcement or appeal under Supreme Court Rule 304(a). We accordingly have jurisdiction over the appeal, as it is a final injunction order that was made expressly appealable by the trial court in its finding.

As the Illinois Supreme Court stated in Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 385-86, 483 N.E.2d 1271, 1277, “In far too many cases the distinction between *** a preliminary injunction, and a permanent injunction becomes blurred during the proceedings. *** The purposes of these two writs are different and distinct. The proof that is required to support them is not the same.”

In the pending case, our review of the permanent injunction rests on a different footing than it would if we were presented with the same record on review under Supreme Court Rule 307, from entry of a preliminary injunction. The purpose of a preliminary injunction is to raise a fair question as to the existence of a right needing protection, not to decide controverted facts or the ultimate merits. Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386, 483 N.E.2d 1271, 1277.

Both sides focus on the existence of a protectable business interest as determining the question of whether Regent’s restrictive covenant is enforceable. Most of the decisions cited in the parties’ briefs involving the validity of restrictive covenants are appeals from entry of preliminary injunctive relief, however. These cases provide limited guidance as to the validity of the permanent injunction that was entered in the pending case. It is true that if a party cannot establish the existence of a protectable business interest, he or she will not be entitled to either preliminary or permanent injunction. (Buzz Barton & Associates, 108 Ill. 2d 373, 483 N.E.2d 1271.) Even if a party establishes a clear right entitled to protection, however, he must satisfy the other elements of permanent injunctive relief. A substantial likelihood of success on the merits will sustain the entry of a preliminary injunction; more proof is needed to support a permanent injunction.

The trial court did not reach the threshold issue of whether Regent had a protectable business interest because it determined that the restrictive covenant was not supported by adequate consideration. We do not agree, however, that the covenant lacked legal consideration. Under Illinois law, continued employment after signing an employment contract with a restrictive covenant is considered to be adequate consideration. (McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 486 N.E.2d 1306.) In this case Shapiro himself alleged that he believed that he would not retain his employment if he did not sign the employment agreement. We conclude that the trial court’s ruling on this point was erroneous.

Our next concern is whether Regent proved that its restrictive covenant was valid and enforceable. A restrictive covenant in an employment agreement is generally held to be enforceable if it is reasonable in geographical and temporal scope and it is necessary to protect a legitimate business interest of the employer. (E.g., Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 422 N.E.2d 1034.) Although enforceability is a question of law, the reasonableness of any restrictive covenant is determined by the facts of the particular case. (J.D. Marshall International, Inc. v. Fradkin (1980), 87 Ill. App. 3d 118, 409 N.E.2d 4.) The court recognized in Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 16, 490 N.E.2d 1302, 1307, that there are two general situations in which an employer’s interest in his customers is adequate for enforcing a covenant not to compete: “(1) where, by the nature of the business, plaintiff has a near-permanent relationship with its customers and but for his or her employment, defendant would not have had contact with them; or (2) where the former employee learned trade secrets or acquired other confidential information while in plaintiff’s employ and subsequently attempted to use it for his or her own benefit.”

Regent asserts that it has established a protectable business interest under either test. Its evidence includes general testimony that the method by which Regent determined its pricing was something that only the Shapiro family knew, and that if a competitor received such information, it could undercut Regent’s prices and lure away its customers. Howard Shapiro admits that his grandfather developed Regent’s particular pricing system and that his father and uncles refined it. He concedes that it took him years to learn the system. However, he asserts that Regent took no steps to segregate or restrict access to the information; all of the production workers had access to this formula and used it in the course of business. The parties agree that all of the basic costs components that go into a job, such as cost of paper, cutting, film, ink, are common to the industry and that directories are available to guide printers in setting those costs.

We find it difficult to ascertain from the record what, exactly, was confidential about Regent’s pricing formula. We agree with Howard that Regent’s pricing formula could not be considered a trade secret. (See Service Centers of Chicago, Inc. v. Minogue (1989), 180 Ill. App. 3d 447, 535 N.E.2d 1132.) Nevertheless, we disagree with Howard’s suggestion that only trade secrets — as distinct from confidential information — are entitled to legal protection. (See, e.g., A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 514 N.E.2d 45 (employer’s interest in his customers is proprietary and thus legally protectable if the employee acquired confidential information through his employment and substantially attempted to use it for his own benefit).) Our analysis of the confidential information evidence in this case leads us to conclude that it falls short of being a protectable business interest entitled to injunctive relief.

Regent also has asserted a near-permanent relationship with the customers in which it alleges a proprietary interest. Some had been customers of Regent for eight or more years, in an industry that has been characterized as being “highly competitive.” (Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 16, 490 N.E.2d 1302, 1307.) If the pending appeal were from a preliminary injunction, we might have agreed that the evidence raises a fair question as to the existence of a protectable interest under this test. If so, we might have found that Regent had sustained its requisite showing of the elements for provisional relief and maintenance of the status quo. (A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 514 N.E.2d 45.) There is evidence of record that Regent enjoyed a near-permanent relationship with certain clients, some of which were steady customers for eight or more years, and that the company maintained specialized customer information that would enable it to better serve them. Howard would not have been exposed to these clients and information but for his employment with Regent.

We do not find, however, that the record supports the entry of permanent injunctive relief based on the restrictive covenant. We cannot say with any degree of certainty that Regent sustained the burden of proof necessary for this relief.

Although the trial court stated that the pricing formula is “a valuable business asset of Regent and is proprietary and confidential information,” it did not base its ruling on the validity of the restrictive covenant. By viewing the evidence as establishing that Shapiro had solicited Regent’s customers while still employed, the trial court held that this breach of fiduciary duty justified the entry of the short-term injunction, to allow Regent to regain its competitive edge.

The evidentiary support for this theory is also scant, possibly because the parties were focusing on the validity of the restrictive covenant and did not pursue breach of fiduciary duty as a theory of the case. Indeed, Howard’s appeal challenges the use of this theory as being unfair to him for that reason. We decline to rule on the soundness of this approach because it is irrelevant to our disposition. However, we note that the result of the trial court’s ruling seems equitable under all of the circumstances. We believe that the trial court attempted to reach an equitable compromise that would fairly conclude the injunctive branch of the litigation and put neither side at a severe disadvantage.

Although we could reverse the court’s order on the basis that Regent failed to prove its right to permanent injunctive relief, we instead chose to dismiss the appeal as having become moot. The two-month injunction has long since expired, on its own terms. Our dismissal of the appeal leaves the parties to their other remedies at law and does not affect those rights.

For the foregoing reasons, we dismiss this appeal on the grounds that the relief requested by both the main and cross-appeals has become moot.

Dismissed.

JOHNSON, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

I respectfully dissent. Regent Printing Company is having difficulty getting its motion heard. Regent filed a motion for a preliminary injunction against Howard Shapiro. In accordance with the contract mentioned in the majority opinion, Regent sought to enjoin Howard from soliciting customers of Regent. The trial court, apparently in a well-meaning attempt to ameliorate a family situation, found that the agreement was invalid because of a failure of consideration. Howard had not contended that the agreement was invalid for this reason. Regent on appeal has again asked to have a preliminary injunction entered against Howard according to the terms of the contract. The majority has not ruled on Regent’s motion because, as noted parenthetically in a footnote, the majority has found that Regent had no right to appeal under supreme court rules. Howard did not raise that issue here. Regent is entitled to have its motion considered on the issues raised by the parties.

The appeal should be placed in some perspective. The trial court entered an injunction for two months against Howard. Howard appeals, contending that the injunction was a permanent injunction and should not have been entered because he was only called upon to respond to a hearing on a preliminary injunction. The majority in this court found the injunction to be permanent but invalid because there was insufficient proof to warrant a permanent injunction. While I agree with the majority that the injunction is permanent, I would also agree with Howard’s contention that the permanent injunction should not have been entered because Howard was not called upon to respond to a hearing on a permanent injunction. I believe, as Regent contends on appeal, that Regent was entitled to a hearing on its motion for a preliminary injunction and that in light of the evidence a preliminary injunction should have been entered. I disagree with the majority holding, as noted in the footnote, that Regent did not have the power to cross-appeal from the denial of its motion for a preliminary injunction because it did not perfect its appeal pursuant to Supreme Court Rule 307. (107 Ill. 2d R. 307.) That rule provides that an aggrieved party may take an interlocutory appeal as a matter of right from the denial of an injunction. The majority makes no mention of the proposition that a cross-appeal may be taken pursuant to Supreme Court Rule 303(a)(3), which provides that any party may cross-appeal after the filing of an appeal. 107 Ill. 2d R. 307.

Regent’s motion for a preliminary injunction is based on the provisions of the contract. Howard contends that the trial court was correct in finding that there was no consideration for the agreement. I agree with the majority that the contract was supported by adequate consideration and is therefore valid in this respect. Regent contends that the restrictive covenant is valid because it is reasonable in geographic scope and time and because Regent has a protectable business interest in its customers. Howard does not contest the time or the geographic scope of the covenant. Howard contends that in the factual setting here Regent does not have a protectable business interest.

Regent’s specific response is that employers have a protectable interest in their customers under two circumstances: (1) where the employee has acquired confidential information and subsequently attempts to use it for his own benefit; or (2) where, by the nature of the business, the employer’s relationship with its customers is near permanent, and but for his association with the employer, the employee would not have had contact with the customers in question. (Corroon & Black of Illinois, Inc. v. Magner (1986), 145 Ill. App. 3d 151, 494 N.E.2d 785; The Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273.) Regent contends that both of these situations exist in the present case. Howard responds that the facts of the instant case appear to be virtually identical to the recently decided case of Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 490 N.E.2d 1302, in which the court ruled that the evidence did not support a finding that the employer had a protectable business interest.

To be valid, a contract in restraint of competition must be reasonable in its effect upon the parties and the public. The effect is reasonable if the agreement will not be injurious to the public, will not cause undue hardship to the employee and is not greater in scope than is necessary to protect the employer. (House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 225 N.E.2d 21; Dryvit System, Inc. v. Rushing (1985), 132 Ill. App. 3d 9, 477 N.E.2d 35.) Employers have a legitimate and protectable interest in protecting their relationships with their customers. (Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648.) An employer has no proprietary interest in its customers; however, the law will find a protectable interest where the employee acquired confidential information and attempted to use it, or where the customer relationship is near permanent and but for the employer the employee would not have had the customer contact. Corroon & Black of Illinois, Inc. v. Magner (1986), 145 Ill. App. 3d 151, 163, 494 N.E.2d 785, 792; The Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 892, 480 N.E.2d 1273, 1279.

I believe, as did the majority and apparently the trial court, that the plaintiff had a protectable interest under the agreement. Howard has valuable, confidential customer information, including the names of personal contacts for each customer, the type of printing those customers need, the time of the month or year they need it, the credit worthiness of the customers, and their sales volume. As was stated in Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App. 3d 285, 389 N.E.2d 1300, this inside information may potentially give a former employee an unfair advantage in bidding against the employer. In Reinhardt, the case that Howard cites for support, the employee had little customer information. I believe that Regent was entitled to a preliminary injunction based on the evidence presented.

Regent has argued this appeal based on the cases which stand for the proposition that an employer has a protectable interest when an employee has acquired confidential information which he seeks to use for his own benefit, or the employer’s customer relationships were near permanent and but for the employment the employee would not have had contact with the customers. I am concerned that the suggestion is that only under these circumstances are customer relationships protected. The Reinhardt case fosters this idea with the statement that customer lists and other customer information will be deemed a protectable trade secret only where information has developed over a number of years, at great expense and under tight security. I do not believe that these are appropriate limitations. The broad proposition of law in the area of restraint of competition is that such a contract is reasonable when it is not injurious to the public, will not cause undue hardship to the employee, and is no greater than necessary to protect the employer. (Cockerill v. Wilson (1972), 51 Ill. 2d 179, 281 N.E.2d 648; House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32, 225 N.E.2d 21.) The interest of the employer that needs to be protected here is the interest the employer has in its clients. More specifically, it is the interest the employer has in preventing an employee from taking over its customers through the contacts that the employee has had with those customers while he worked for the employer. House of Vision, 37 Ill. 2d at 38, 225 N.E.2d at 24.

In House of Vision, the employee was a contact lens fitter. He serviced between 700 to 800 customers in each of two offices of the employer. The work brought him into close contact with the customers and was of an intimate and highly personal nature. The employee was the principal, if not the only, point of contact between the plaintiff-employer and its customers. The employer sought to enforce the covenant that would restrict the employee from any employment in the same business within a radius of 30 miles. The Illinois Supreme Court acknowledged that an employer has a protectable interest in its customers, but refused to enforce the restrictive covenant in this case because it was unrealistic both as to time and space. The House of Vision court did not state that an employee’s acquisition of confidential information or an employer’s near permanent business relationship with customers is a prerequisite to an employer’s protectable interest in its customers. House of Vision, 37 Ill. 2d at 38, 225 N.E.2d at 24.

The court in House of Vision cites to Blake, Employee Agreements Not to Compete, 73 Harv. L. Rev. 625 (1960) (cited in House of Vision, 37 Ill. 2d at 39, 225 N.E.2d at 25). Blake comments that “an employer has a sufficient interest in retaining his present customers to support an employee covenant whenever the employee’s relationship with customers is such that there is a substantial risk that he may be able to divert all or part of their business.” (73 Harv. L. Rev. at 657.) Blake refers to this as a “ ‘customer contact’ basis.” Whether the employer warrants protection will depend upon the frequency, the locale and the nature of the contacts between the employee and the employer’s customers. 73 Harv. L. Rev. at 659.

The court in Cockerill takes a similar view. The plaintiff veterinarian' brought the defendant, also a veterinarian, into practice with him. The plaintiff sought to enforce a restrictive covenant when the defendant terminated the partnership. The court commented that when the plaintiff brought the defendant into association with him, he also brought him into contact with a clientele which the plaintiff had established over a period of years. The plaintiff had an interest in protecting his clients from being taken over by the defendant as a result of these contacts. The court commented that the plaintiff’s clientele was an asset, the protection of which is recognized as a legitimate interest of an employer. Cockerill, 51 Ill. 2d at 184, 281 N.E.2d at 651, citing Annot., 43 A.L.R.2d §4, at 117 (1955).

Section 4(e) of the A.L.R. discussion on restrictive covenants (Annot., 43 A.L.R.2d §4 (1955)) states that the employer is entitled to protection against what is called a legitimate interest but not against ordinary competition. In order to be entitled to protection, the employer must be able to point to a legitimate interest: some additional facts and circumstances which render the restrictive covenant reasonably necessary. The annotation states at section 4(f) that the most important of the employer’s legitimate interests to be protected through the enforcement of a restrictive covenant are the customer contacts that the employer has developed for his business. The protection of this asset against appropriation is recognized everywhere as an important legitimate interest of the employer. Elsewhere in the annotation, the employer’s customer is described as the most important single asset of a business. Annot., 43 A.L.R.2d §4, at 162.

For these reasons, I believe that restrictive covenants may be enforceable under more circumstances than the narrowly drawn limitations argued in this appeal.

      Despite our acknowledgement that the requirements of a preliminary injunction may have been met, we cannot treat this appeal as one perfected under Supreme Court Rule 307. Neither side chose to treat it as a preliminary injunction. Regent did not move for further proceedings and did not file an interlocutory appeal within 30 days of the entry of the injunction, to test the validity of the court’s refusal to enforce the covenant for the full two-year period. Likewise, Howard did not file an interlocutory appeal asserting that the order was a wrongfully issued preliminary injunction. Had he done so after moving to dissolve he would have preserved a possible claim for statutory damages under section 11 — 110 of the Code of Civil Procedure, assuming that the court agreed that the injunction had been wrongfully entered. (Ill. Rev. Stat. 1987, ch. 110, par. 11—110.) This section does not apply to permanent injunctions, as Howard concedes. (See Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 483 N.E.2d 1271.) Therefore, our disposition of this appeal does not give him any base upon which to assert a claim for damages under that section.