author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SCOTT TIMBERSON, Defendant-Appellee.
    Fifth District
    No. 5—90—0482
    Opinion filed June 5, 1991.

      Scott Mansfield, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

On August 21, 1987, defendant, Scott Timberson, was charged by bill of indictment with first-degree murder in that, on July 5, 1987, without lawful justification and with the intent to kill or do great bodily harm to Ray Manuel, he shot Ray Manuel with a gun, thereby causing the death of Ray Manuel. The case was tried to a jury on November 9 and 10, 1987, in the circuit court of St. Clair County. The jury was instructed on first-degree murder and second-degree murder (unreasonable belief in self-defense). Defendant’s tendered instruction on self-defense was refused by the trial court. On November 10, 1987, the jury returned a verdict of guilty of second-degree murder. The verdict was silent on the charge of first-degree murder. Defendant was sentenced to 12 years’ imprisonment.

Defendant appealed. On August 30, 1989, this court issued its judgment and opinion that the trial court had erred in refusing defendant’s tendered instruction on self-defense. Defendant’s conviction was reversed and the cause was remanded for a new trial. People v. Timberson (1989), 188 Ill. App. 3d 172, 544 N.E.2d 64.

On October 25, 1989, defendant filed a motion to dismiss the charge of first-degree murder for the reason that the prosecution was barred by the double jeopardy clause of the fifth amendment to the United States Constitution, by article I, section 10, of the Illinois Constitution, and by section 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 3—4). Defendant’s motion argued that the jury’s previous verdict of guilty of second-degree murder constituted an implied acquittal of the charge of first-degree murder. After receiving oral and written argument, the trial court denied defendant’s motion to dismiss, finding that a verdict of guilty of second-degree murder does not constitute an acquittal of the charge of first-degree murder, as the elements of the latter charge must be proved to prove second-degree murder, and that second-degree murder is not a lesser-included offense of first-degree murder because it requires proof of additional facts.

The cause was tried to a jury on March 14 and 15, 1990. The jury was instructed on first-degree murder and the issue of self-defense. No second-degree murder instructions were tendered or given. The jury returned a verdict of guilty of first-degree murder.

On April 11, 1990, defendant filed a post-trial motion alleging that the trial court had erred in denying his motion to dismiss the charge on double jeopardy grounds. Briefs were filed on the issue and, on July 10, 1990, the trial court granted defendant’s request for a new trial, finding that it did err in denying defendant’s motion to dismiss the charge of first-degree murder as barred by principles of double jeopardy. The cause was set for new trial.

The People of the State of Illinois appeal. The State argues that defendant’s second prosecution for first-degree murder was not barred by principles of double jeopardy for the following reasons:

(1) The doctrine of implied acquittal of first-degree murder based upon a finding of guilty of second-degree murder does not apply because, in order to find defendant guilty of second-degree murder, the jury must first find defendant guilty of first-degree murder. Thus, the State argues, defendant was impliedly convicted of the offense of first-degree murder. The doctrine of implied acquittal applies only where the jury is silent as to the offense charged, and not where the jury has made an express finding of guilty on all the charges; and
(2) Second-degree murder is not a lesser-included offense of first-degree murder because proof of second-degree murder requires proof of facts in addition to facts necessary to prove first-degree murder. Second-degree murder requires proof of all the elements of first-degree murder plus proof of a mitigating factor. Furthermore, second-degree murder does not involve a less culpable mental state than first-degree murder, but involves the same mental state.

Contrary to the State’s position, we are of the opinion that defendant’s conviction for second-degree murder did constitute an implied acquittal of first-degree murder and that second-degree murder is a lesser-included offense of first-degree murder. We find, therefore, that defendant’s second trial for first-degree murder did violate defendant’s right not to be placed twice in jeopardy for the same offense. Accordingly, we affirm the judgment of the circuit court of St. Clair County granting defendant’s post-trial motion for a new trial.

In Green v. United States (1957), 355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221, the United States Supreme Court established the doctrine of “implied acquittal,” in which conviction of one charge constitutes an implied acquittal of all other charges based upon the same facts if the verdict is silent as to those other charges. In Green, the defendant was charged in two counts with arson and with first-degree murder in that he caused the death of a person in committing arson. The jury was instructed that defendant could be found guilty of first-degree murder (based on the arson) or second-degree murder (killing another with malice aforethought). Defendant was convicted of second-degree murder. The verdict was silent on the charge of first-degree murder. Defendant appealed and the case was remanded for a new trial. Defendant was again tried for first-degree murder under the original indictment and was found guilty. He appealed, claiming that the second trial for first-degree murder placed him in double jeopardy for the same offense. In discussing the history and application of the doctrine of double jeopardy, the Supreme Court pointed out that a verdict of acquittal is final, ending a defendant’s jeopardy, and is a bar to a subsequent prosecution for the same offense. The Court also pointed out that the prohibition against double jeopardy will bar a subsequent prosecution where a defendant is once placed in jeopardy by having been put to trial before a jury and the jury is discharged without his consent. The Supreme Court explained that for both these reasons, Green’s second trial was barred by principles of double jeopardy:

“Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gauntlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder. But the result in this case need not rest alone on the assumption, which we believe legitimate, that the jury for one reason or another acquitted Green of murder in the first degree. For here, the jury was dismissed without returning any express verdict on that charge and without Green’s consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seems clear, under established principles of former jeopardy, that Green’s jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense. [Citation.] In brief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: ‘We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.’ ” 355 U.S. at 190-91, 2 L. Ed. 2d at 206, 78 S. Ct. at 225.

We think the same reasoning applies to the case at bar. Defendant’s conviction for second-degree murder was an implied acquittal on the charge of first-degree murder. We do not agree with the State that such cannot be the case because a conviction for second-degree murder requires proof of all the elements of first-degree murder. While the State is correct that the elements of first-degree murder must be proved to prove second-degree murder, conviction of second-degree murder does not constitute an “implied conviction” of first-degree murder. The State confuses the process by which the jury determines its verdict with the actual verdict.

Pursuant to section 9 — 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(a)), the jury must determine if all the elements of an intentional killing (first-degree murder) have been proved. If it so finds, the jury must then determine if the defendant has presented sufficient evidence of a mitigating circumstance to reduce the magnitude of the intentional killing from first- to second-degree murder. There is no finding of guilt as to first-degree murder and no verdict is entered as to first-degree murder. The only finding of guilt, and the only verdict entered, is with respect to second-degree murder. A second-degree murder conviction is a determination that, while the State has met its burden as to whether an intentional killing occurred, there are mitigating circumstances which reduce the degree of the offense. First- and second-degree murder are separate and distinct offenses, just as were murder and voluntary manslaughter.

In the instant case as in Green, the jury had the opportunity to find the defendant guilty of first-degree murder at defendant’s first trial. It did not do so. Defendant was therefore acquitted of first-degree murder, and his second prosecution for that offense was barred by principles of double jeopardy. Furthermore, the jury at defendant’s first trial was discharged without his consent and without returning any express verdict on the charge of first-degree murder. At that point, defendant’s jeopardy for first-degree murder came to an end and he could not be retried for the same offense.

Furthermore, the statute defining second-degree murder was written with the specific intention of retaining all of the substantive law, both statutory and case law, previously applicable to the statute defining the offense of voluntary manslaughter. (Steigmann, First & Second Degree Murder in Illinois, 75 Ill. B.J. 494, 495 (1987).) Conviction of voluntary manslaughter has long been considered an implied acquittal of murder where the jury is instructed on both offenses. People v. Hall (1969), 118 Ill. App. 2d 160, 168, 254 N.E.2d 793, 797.

We also find that defendant’s second trial for first-degree murder was barred by section 3 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 3—4(a)). That section provides that conviction of an included offense is an acquittal of the offense charged. In the instant case, defendant was charged with first-degree murder. At his first trial, he was convicted of second-degree murder, with which he was not charged. The State argues, however, that second-degree murder is not an included offense of first-degree murder because it requires proof of facts not required for proof of first-degree murder and does not involve a less culpable mental state. We disagree.

An “included offense” is defined as an offense which is established by proof of the same or less than all of the facts, or a less eulpable mental state (or both), than that which is required to establish the commission of the offense charged. (Ill. Rev. Stat. 1989, ch. 38, par. 2—9(a).) Although second-degree murder is not established by-proof of the same or less than all of the facts required to prove first-degree murder, we think it does involve a less culpable mental state. In People v. Reddick (1988), 123 Ill. 2d 184, 195, 526 N.E.2d 141, 145, our supreme court recognized that the mitigating elements of the crime of voluntary manslaughter, which are identical to those of the crime of second-degree murder, represent mental states of lesser culpability.

Furthermore, voluntary manslaughter has long been recognized as a lesser-included offense of murder. (People v. Goolsby (1979), 70 Ill. App. 3d 832, 836, 388 N.E.2d 894, 897.) The statute defining second-degree murder was written with the specific intention of retaining all of the substantive law, both statutory and case law, previously applicable to the statute defining the offense of voluntary manslaughter. (Steigmann, First & Second Degree Murder in Illinois, 75 Ill. B.J. 494, 495 (1987).) Thus, second-degree murder must be considered a lesser-included offense of first-degree murder.

Finally, all prosecutions for felonies must be commenced by information or indictment. (Ill. Rev. Stat. 1989, ch. 38, par. 111 — 2.) Defendant was charged only with first-degree murder. Thus, if second-degree murder is not an included offense of first-degree murder, defendant could not have been convicted of second-degree murder at his first trial. Furthermore, if second-degree murder is not an included offense of first-degree murder, a defendant would not be in a position to establish the mitigating circumstances under the second-degree murder statute and thereby reduce the offense from first-degree murder unless the State itself charged defendant with second-degree murder. One can easily see that, if such were the case, there would be few, if any, convictions for second-degree murder. Such an interpretation of the second-degree murder statute would be absurd, and we must assume that the legislature did not intend an absurd result. (Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84, 86.) Because an indictment for one offense serves as an indictment for all lesser-included offenses even though they are not specified (Kinter v. Board of Fire & Police Commissioners (1990), 194 Ill. App. 3d 126, 129, 550 N.E.2d 1126, 1128), and because the legislature must have intended that second-degree murder be available as an alternative to first-degree murder, second-degree murder must be considered an included offense of first-degree murder. Thus, an indictment for first-degree murder includes the charge of second-degree murder, making this lesser offense available to defendant if he can prove a mitigating circumstance. Obviously, this is the result the legislature intended in drafting the new murder statutes.

Because second-degree murder is a lesser-included offense of first-degree murder, defendant’s conviction of second-degree murder was an acquittal of the offense charged, first-degree murder. His second trial for first-degree murder violated defendant’s right not to be placed twice in jeopardy for the same offense.

Finally, we point out that if we were to accept the State’s position, a defendant convicted of second-degree murder would not be able to appeal even from the denial of a constitutional right without risking trial and conviction on a more serious charge. The legislature could not have intended to so chill a defendant’s substantial right to appeal from a possibly erroneous or unconstitutional conviction in his first trial.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

RARICK, P.J., and CHAPMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON JUSTICE WELCH,

license: Public Domain

text:
      In re MARRIAGE OF HULDA LOUISE LEWIS, Petitioner-Appellee, and WILLIAM LEWIS, Respondent-Appellant.
    Fifth District
    No. 5—90—0197
    Opinion filed May 29, 1991.

      WELCH, J., dissenting.
    Judith A. Rau and Larry J. Keller, both of Rau & Rau, of Columbia, for appellant.
    Blake Weaver, of Strellis, Nester, Faulbaum & Field, of Waterloo, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Personal jurisdiction over an out-of-State resident is dependent upon strict compliance with section 2 — 208 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—208; Wells v. Braxton (1967), 82 Ill. App. 2d 354, 227 N.E.2d 137). Where there has not been strict compliance, there is no personal jurisdiction.

Section 2 — 208(b) requires in part that:

“[a]n affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs, in determining whether service [was] properly made.” Ill. Rev. Stat. 1989, ch. 110, par. 2—208(b).

In this case, the purported affidavit of service was not signed, and no “other competent proof” was presented. Therefore, the circuit court lacked personal jurisdiction over the respondent.

Petitioner, a resident of Illinois, filed for dissolution of marriage from her husband, the respondent, a resident of Kentucky. Petitioner sent a summons to the Warren County, Kentucky, sheriff’s department requesting that the sheriff serve respondent and complete and return the summons and an affidavit. The summons and affidavit are reproduced in an appendix to this opinion.

Deputy Sheriff Flora did not sign the affidavit of service. (See Appendix C.) Without the signature of the one who purportedly completed the out-of-State.service, there can be neither an affidavit, nor proof of service, nor personal jurisdiction. See Wells v. Braxton (1967), 82 Ill. App. 2d 354, 227 N.E.2d 137 (stating that no personal jurisdiction exists over an out-of-State resident absent strict compliance with section 2 — 208); see also Kohls v. Maryland Casualty Co. (1986), 144 Ill. App. 3d 642, 494 N.E.2d 1174.

Petitioner argues that an affidavit is not necessary in this case, because there was “other competent proof” of service permitted by section 2 — 208, thereby allowing the circuit court to assert jurisdiction over respondent’s person. The “proofs” that petitioner relies upon are: (1) the stamp, “Received Jerry Gaines, Sheriff, Warren County, Ky.,” appearing on the face of the summons (see Appendix A); (2) the printed notation on the bottom of the summons which states, “Served William Harold Lewis on the 19th day of October, 1989 By T. Flora No. 406 D.S.” (see Appendix A); (3) the check mark on the reverse side of the summons (see Appendix B); and (4) the partially handprinted words, “Jerry Gaines, Sheriff of Warren County. By: T. Flora, (Deputy)” (see Appendix B).

Petitioner cites In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 494 N.E.2d 541, and Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 430 N.E.2d 1104, to support his claim of effective service of process. Both are distinguishable from the case at bar.

In Passiales, the court found that service of process was proper despite no affidavit being filed. There, the failure to file an affidavit was deemed harmless because the sheriff testified that service had been completed. This testimony amounted to “other competent proof” allowed by statute. (In re Marriage of Passiales, 144 Ill. App. 3d 629, 494 N.E.2d 541.) In contrast, in the case at bar, there is lacking both an affidavit and testimony that service on respondent had been completed.

In Clemmons, the court addressed service of process under section 13.1(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 13.1(1)), the forerunner of section 2—202 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—202). The case at bar involves section 2—208, not section 2 — 202 or section 13.1(1).

Section 2 — 202, formerly section 13.1, establishes: (a) who is authorized to serve process within the State of Illinois; (b) where service is to be made within the State of Illinois; (c) the penalty for failure to make a return of service within the State of Illinois; and (d) fees and costs that may be taxed for service made within the State of Illinois. Section 2 — 202(a), formerly section 13.1(1), provides that when an Illinois sheriff or coroner completes service, the return is to be endorsed on the summons, and when a private person completes service, the return is to be by affidavit. The court, in Clemmons, stated that the purpose of section 13.1(1), now section 2 — 202(a), was to make it more difficult to attack the return of a private process server.

Clemmons is distinguishable, because whereas Clemmons and section 13.1 dealt with service inside Illinois, this case and section 2 — 208 involve service outside Illinois. There are fewer limitations upon the assertion of jurisdiction over residents than when asserting jurisdiction over nonresidents. (See Ill. Rev. Stat. 1989, ch. 110, par. 2—201 et seq.) For example, out-of-State service on an Illinois resident who has actual knowledge of the suit is effective even when plaintiff fails to file the officer’s return until after service. (Coronet Insurance Co. v. Jones (1977), 45 Ill. App. 3d 232, 359 N.E.2d 786.) The same is not true, however, when service is attempted on a nonresident, for “[wjhile the State presumably has jurisdiction over its residents, this is not true of nonresidents. It is only in certain instances that our courts may reach out and touch citizens of other states [sic\ and those occasions are enumerated by statute.” (Wells v. Braxton (1967), 82 Ill. App. 2d 354, 362, 227 N.E.2d 137, 142.) Therefore, Clemmons has no application to the case at bar.

Since respondent is a Kentucky resident, section 2 — 208 requires that proof of service be made either by an affidavit or by “other competent proof.” An affidavit is required to be signed and notarized because only by that signature and notary seal does the court have a guarantee of the authenticity of the signature. The authenticity of the signature gives the court assurance of the trustworthiness of the statement that has been made within the affidavit, namely, that service has been accomplished. Examining the facts of this case, we find that the purported “affidavit” was unsigned; thus, no statement that service had been accomplished was made. Since no statement that service had been accomplished was made in the affidavit, the affidavit cannot amount to “other competent proof” that service had been accomplished.

We note that some cases hold that technical insufficiencies within an affidavit are not fatal. (See, e.g., Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 545 N.E.2d 965.) These cases, however, do not deal with affidavits that attest to proof of out-of-State service and are distinguishable on that fact.

All procedure, to some extent, is ritualistic. Rituals that are designed to move a case toward completion after a State’s judicial power has been invoked serve purposes wholly different from rituals that are designed to invoke power itself. The former tend to be concerned with the myriad interests of the parties and the economy of the court. But, the latter touch the very cornerstone of the framework of American law — limitation of the power of the State. This case involves the invocation of a State’s power over one not found within its borders, a special instance of limitation upon the power of a State. In the former there is less at stake; so-called technical insufficiencies can be tolerated. The same is not true in the latter. At stake in the latter is freedom from the power of the State, leading courts to brook no insufficiency. Therefore, those cases that forgive technical insufficiencies in affidavits have no application to this case.

In this case, section 2 — 208 requires a signed affidavit that is notarized by one authorized to administer an oath. Therefore, without a signature, the “affidavit” in this case lacks the minimum standard of trustworthiness and therefore has no effect.

There being no affidavit, the question becomes whether any “other competent proof” establishes the accomplishment of out-of-State service. There being no testimony, the only “other competent proof” consists of the handprinted material at the bottom of the face of the summons and the partially handprinted material and the check mark on its back. (See Appendices A and B.) The handprinted material at the bottom of the summons says, “Served William Howard Lewis on the 19th day of Oct. 1989 by T. Flora No. 406 D. S.” The partially handprinted material on the backside of the summons includes a check mark and the words, “Jerry Gaines, Sheriff of Warren County, By: T. Flora (Deputy).”

We hold that the handprinted material on the summons is insufficient to assure the court that out-of-State service had. been accomplished, because it is not authenticated, i.e., anyone could have written it. Without authentication, it does not assure the court that the statement that service had been completed was trustworthy. Since this case involves the invocation of the power of this State over a Kentucky resident, we can brook no technical deficiencies in the ritual that invokes that power — i.e., the affidavit. Thus, neither an affidavit nor “other competent proof” of service existed. Because of the failure to comply with section 2 — 208, the circuit court lacked personal jurisdiction over respondent.

The circuit court entered a default judgment against respondent, dissolving the marriage and dividing marital assets, and refused to vacate the division of assets on respondent’s motion. Respondent appealed, agreeing that the court had in rem jurisdiction to dissolve the marriage, but requesting that this court vacate that portion of the judgment that divided the marital assets because of the lack of personal jurisdiction. Since we hold that the circuit court lacked jurisdiction over respondent’s person, we vacate that portion of the judgment that divided the marital assets and remand to the circuit court for further proceedings.

Affirmed in part; vacated in part and remanded.

LEWIS, J., concurs.

JUSTICE WELCH,

dissenting:

I agree with the majority that personal jurisdiction over an out-of-State resident depends upon strict compliance with section 2 — 208 of the Code of Civil Procedure (Wells v. Braxton (1967), 82 Ill. App. 2d 354, 227 N.E.2d 137), and that section 2 — 208 requires that an affidavit of the server be filed stating the time, manner and place of service (Ill. Rev. Stat. 1989, ch. 110, par. 2—208). However, I disagree with the majority that the “Affidavit of Service” filed herein (see appendix C) did not constitute a valid affidavit within the meaning of section 2 — 208 because it was not signed.

An affidavit is simply a declaration, on oath, in writing sworn to before some person who has authority under the law to administer oaths. (People v. Smith (1974), 22 Ill. App. 3d 377, 380, 317 N.E.2d 300, 302.) Neither section 2 — 208 nor any other section of the Code of Civil Procedure nor any supreme court rule requires a signature if the identity of the affiant is otherwise sufficiently shown, as where he is named in the body of the affidavit. The majority points to no statute or case law requiring such a signature where the identity of the affiant is otherwise clear and the affidavit is properly sworn and notarized.

The majority states that the notarized signature is essential because it gives the court assurance of the trustworthiness of the statement that has been made within the affidavit. I disagree. It is the oath which gives the court assurance of the trustworthiness of the declaration contained in the affidavit. The signature only serves to identify the affiant and. formalize the declaration before the notary. However, the affiant can be identified in the body of the affidavit and the declaration can be made to the notary in ways other than a signature. For example, an affiant may appear before a notary with an affidavit similar to the one in the case at bar and present the affidavit to the notary who, after confirming the identity of the affiant and that the declaration contained in the affidavit is true, notarizes the instrument. In such a case it is obvious that the affiant has made an affidavit and his signature adds nothing and is unnecessary.

In the instant affidavit, the name of the affiant is handwritten in the body of the affidavit by the affiant himself. Furthermore, the jurat recites that the declaration contained in the affidavit was subscribed and sworn to before the notary, a person authorized to administer oaths. The affidavit in question thus qualifies as a declaration, on oath, in writing sworn to before a person who has authority to administer oaths. Furthermore, the affidavit in question establishes that for which it is intended, i.e., that T. Flora personally served the defendant with process at a particular location in the afternoon or evening of October 19,1989.

Indeed, what more is required than that an individual appear before a notary public authorized to administer oaths and present a written declaration that he, the affiant, personally served the defendant with summons and a copy of the petition on a certain time and date at a certain location? That is precisely what is required by section 2 — 208 and is precisely what occurred in the case at bar. A signature at the bottom of the instrument, especially where the affiant’s name is handwritten in the body of the affidavit by the affiant, would have added nothing more to the affidavit or the procedure and is not required by section 2 — 208.

Thus, while I recognize that service and return on an out-of-State defendant must comply fully with the requirements of section 2 — 208, I believe that, in the instant case, those requirements were fully complied with.


author: JUSTICE HARRISON

text:
    GLORIA HENDERSON, Indiv. and as Special Adm’r of the Estate of Robert S. Henderson, Deceased, Plaintiff-Appellant, v. BECKMAN TEXACO et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0229
    Opinion filed June 5, 1991.

      Jeanne L. Sathre and Mark T. McClosky, both of Lakin & Herndon, P.C., of Wood River, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellee Lyle Weems.
    Teresa E. Kessler, of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, of Edwardsville, for appellees Beckman Texaco and David A. Beard.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Gloria Henderson, as special administrator of the estate of Robert S. Henderson, deceased, brought an action in the circuit court of Marion County to recover damages from defendants, Beck-man Texaco, David A. Beard, Lyle Weems, and Salem Holiday Inn, under the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, par. 1 et seq.). Plaintiff also sought damages individually from defendant Salem Holiday Inn pursuant to the Dramshop Act (Ill. Rev. Stat. 1987, ch. 43, par. 135). Service of process against defendant Salem Holiday Inn was quashed, and, in separate orders, summary judgment was entered against plaintiff and in favor of the remaining defendants. Plaintiff now appeals, and the sole issue before us is whether the circuit court’s orders granting summary judgment were proper. For the reasons which follow, we hold that they were. We therefore affirm.

Under Illinois law, summary judgment is proper where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (O’Brien v. Rogers (1990), 198 Ill. App. 3d 341, 344, 555 N.E.2d 1005, 1007.) Here, those materials showed that on the night of September 12, 1984, defendant Lyle Weems, an Illinois State trooper, was patrolling U.S. Highway 57, a multilane, divided highway, near Salem. Weems was traveling north on the highway when he spotted an automobile proceeding at a high rate of speed in the southbound lanes. Weems attempted to make a U-tum across the center median so that he could pursue this vehicle. However, the median was wet, and Weems’ patrol car became stuck. The patrol car came to rest completely within the median. No part of it touched the highway.

When Weems realized that he would not be able to extricate the patrol car himself, he radioed for help. Beckman Texaco was summoned, and it dispatched David Beard to the scene in a tow truck. When Beard arrived, he positioned his tow truck on the shoulder of the southbound lanes adjacent to the median. The tow truck was facing north with its headlights on. Weems testified in his deposition and in an affidavit that the tow truck’s yellow emergency lights were flashing. This was also indicated in a police report Which Weems had prepared. Although a different police report evidently made no mention of the emergency lights, that report was not in the record, and there was no evidence that the emergency lights were not, in fact, in operation.

Weems and Beard had both exited their vehicles and were standing nearby when an automobile operated by the plaintiff’s decedent drove off the roadway and crashed into the front of the tow truck. The force of the collision proved fatal to plaintiff’s decedent. In her complaint, plaintiff contends that Lyle Weems should be held liable for the decedent’s death because he was negligent in that he:

“a. Failed to display warning lights or flashers on his police car to warn oncoming motorists of hazardous conditions existing at the site of the stuck police car;
b. Failed to place flares, markers or other warning devices so as to warn oncoming motorists of the presence of the tow truck and police car on the highway;
c. Failed to insure that the tow truck did not extend onto the highway while towing the police car from the medium [sic].”

In the circuit court, Weems moved for summary judgment in his favor on the grounds that, although he is the nominal defendant, the suit is actually against the State and has to be brought in the Court of Claims. In the alternative, he argued that, even if the suit were actually brought against him and not the State, he could not be held individually liable because of the common law doctrine of public official immunity. We shall consider each of these arguments in turn.

Article XIII, section 4, of the current State constitution states, “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4.) Pursuant to that constitutional grant of authority, the legislature has acted to reinstate sovereign immunity. Section 1 of “An Act in relation to immunity for the State of Illinois” provides:

“Except as provided in the ‘Illinois Public Labor Relations Act’, enacted by the 83rd General Assembly, or except as provided in ‘AN ACT to create the Court of Claims, to prescribe its powers and duties, and to repeal AN ACT herein named’, filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.” Ill. Rev. Stat. 1987, ch. 127, par. 801.

The Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, pars. 439.1 through 439.24—9) establishes a Court of Claims to serve as a forum for actions against the State. Section 8 of the Court of Claims Act provides:

“The court shall have exclusive jurisdiction to hear and determine the following matters:
* * *
(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit ***; provided, that an award for damages in a case sounding in tort, other than certain cases involving the operation of a State vehicle described in this paragraph, shall not exceed the sum of $100,000 to or for the benefit of any claimant.” Ill. Rev. Stat. 1987, ch. 37, par. 439.8.

Under the express terms of this statute, any suit sounding in tort against the State must be brought in the Court of Claims. (Oppe v. State of Missouri (1988), 171 Ill. App. 3d 491, 493, 525 N.E.2d 1189, 1191.) In this case, the State has not been named as a defendant. Plaintiff’s complaint purports to seek recovery only from Weems individually. This, however, is not dispositive. Whether an action is in fact one against the State, and hence one that must be brought in the Court of Claims, depends not on the formal identification of the parties but rather on the issues involved and the relief sought. (Healy v. Vaupel (1990), 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247.) Accordingly, the prohibition “against making the State of Illinois a party to a suit cannot be evaded by making an action nominally one against the servants or agents of the State when the real claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested.” (Sass v. Kramer (1978), 72 Ill. 2d 485, 491, 381 N.E.2d 975, 977.) On the other hand, sovereign immunity affords no protection when it is alleged that the State’s agent acted in violation of statutory or constitutional law or in excess of his authority. In such instances, an action may be brought in circuit court. Healy v. Vaupel (1990), 133 Ill. 2d 295, 308, 549 N.E.2d 1240, 1247.

As noted earlier in this opinion, plaintiff’s complaint here charges Weems with failure to display warning lights or flashers on his police car to warn oncoming motorists of its presence after it had become stuck. Plaintiff similarly claims that Weems failed to place flares, markers, or other warning devices “so as to warn oncoming motorists of the presence of the tow truck and police car on the highway.” Finally, plaintiff alleges that Weems “[flailed to insure that the tow truck did not éxtend onto the highway while towing the police car from the medium [sic].” None of these allegations, however, suggests that in proceeding as he did Weems acted outside thé scope of his authority or in violation of the law. In support of his motion for summary judgment, Weems actually adduced evidence which showed that his decision not to set out flares or to use the emergency lights on his vehicle was discretionary and did not violate any policy of the Illinois State Police. Plaintiff offered nothing to rebut this evidence.

Because plaintiff has failed to allege that Weems acted in violation of statutory or constitutional law or in excess of his authority, her claim cannot be brought in circuit court. Exclusive jurisdiction over her action must lie in the Court of Claims. (Healy v. Vaupel (1990), 133 Ill. 2d 295, 311, 549 N.E.2d 1240, 1248.) Plaintiff attempts to avoid this conclusion by arguing that the alleged acts of negligence committed by Weems were not incurred solely by virtue of his employment, but rather arose out of a common duty that automobile operators owe to the public generally which is independent of the fact of State employment. (See Currie v. Lao (1990), 198 Ill. App. 3d 625, 556 N.E.2d 318, appeal allowed (1990), 133 Ill. 2d 553, 561 N.E.2d 688; Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 475 N.E.2d 1035; Kaiser v. Emrich (1980), 84 Ill. App. 3d 775, 406 N.E.2d 207.) This argument is untenable.

Even if Weems could be said to have been “operating” his vehicle at the time of the accident, it is by no means clear under our supreme court’s recent decision in Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240, that a breach of the foregoing duty, standing alone, would be sufficient to permit a suit in circuit court absent additional allegations that the agent of the State who has been sued acted in violation of statutory or constitutional law or in excess of his authority. In any case, we do not agree that the alleged acts of negligence committed by Weems can be divorced from his status as a State Police officer. For example, plaintiff charges him with negligence in operating the warning lights on his police car, but the failure to properly operate lights on a police car is obviously something of which only a policeman could be guilty. The same is true of plaintiff’s allegations that defendant failed to make sure that the tow truck did not extend onto the highway and failed to place flares at the scene. These allegations are premised on the assumption that Weems had the authority to control the accident scene and the attempts by the tow truck to remove his vehicle. However, if such authority existed, it was only because Weems was a State policeman. An ordinary motorist would not be expected to exercise such control.

In sum, Weems’ status as a police officer is central to the liability plaintiff seeks to impose on him. The specific acts of negligence alleged revolve around conduct uniquely related to Weems’ State employment. Weems was acting within the scope of his authority and not for some other purpose unrelated to his employment. The actions complained of were within his normal and official functions as an agent of the State and violated neither a statute nor the constitution. We must therefore agree with the circuit court that the action was only nominally against the individual State Police officer and was in reality a suit against the State which was required to be brought in the Court of Claims. See Campbell v. White (1991), 207 Ill. App. 3d 541, 552, 566 N.E.2d 47, 54.

In reaching this conclusion, we are mindful of the provisions of section 64.1(k) of the Civil Administrative Code of Illinois (Ill. Rev. Stat. 1987, ch. 127, par. 63b4(k)), which states:

“Whenever and to the extent that a State employee operates a motor vehicle or engages in other activity covered by self-insurance under this Section, the State of Illinois shall defend, indemnify and hold harmless such employee against any claim in tort filed against such employee for acts or omissions within the scope of his employment in any proper judicial forum ***.”

This statute, however, was not intended to have a jurisdictional effect (see Campbell v. White (1991), 207 Ill. App. 3d 541, 566 N.E.2d 47), and we therefore do not believe that it can be viewed as substantively modifying the jurisdiction of the Court of Claims.

Weems argued, in the alternative, that the circuit court correctly granted summary judgment in his favor because he was protected by the doctrine of public official immunity. The merits of this argument need not be addressed. It is well established that common law public-official immunity, where it applies, shields individual law enforcement officers from personal liability. As we have just concluded, however, plaintiff’s cause of action was actually against the State, not Weems individually. Accordingly, whether Weems could have availed himself of the public official immunity doctrine is irrelevant.

The circuit court was also correct in granting summary judgment in favor of defendants Beckman Texaco and David Beard, the owner and operator of the tow truck. Plaintiff claimed in her complaint that Beckman Texaco and Beard were negligent in that they parked the tow truck in such a way that it extended “out into the highway upon which motorists travel.” The evidence adduced by defendants, however, established that the tow truck was, in fact, on the shoulder of the highway. No portion of it lay upon the roadway where motorists traveled. Plaintiff offered nothing to refute this.

Plaintiff further alleged that Beckman Texaco and Beard were negligent in that Beard failed to turn on the “flashers or warning lights on the tow truck to warn oncoming motorists of the presence of the tow truck.” We have already noted, however, that the undisputed evidence established that the yellow warning lights on the tow truck were, in fact, in operation at the time of the collision. There is no genuine issue as to this fact.

Finally, plaintiff alleged that Beckman Texaco and Beard were negligent in that Beard failed to “place flares or other warning devices on the highway so as to warn oncoming motorists of the presence of the tow truck.” That flares or warning devices were not placed on the highway by Beard is not disputed. However, Beard was not the driver or operator of the disabled vehicle, but rather the operator of the tow truck aiding the disabled vehicle. We know of no authority suggesting that the operator of a tow truck who is involved in the towing of a disabled vehicle is under any duty to display flares or other warning devices. See Salinas v. Werton (1987), 161 Ill. App. 3d 510, 517, 515 N.E.2d 142, 146.

Even if there were some basis for finding that defendants Beck-man Texaco and Beard had breached some duty to plaintiff by failing to operate warning lights or display flares, summary judgment in favor of those defendants was nevertheless proper. To prevail on a claim for common law negligence brought under the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, par. 1 et seq.), one must show not only the existence of a duty owed by the defendant to the decedent, and a breach of that duty, but also that the injury was proximately caused by the breach. (Salinas, 161 Ill. App. 3d 510, 514, 515 N.E.2d 142, 144.) Proximate cause can only be established when there is a reasonable certainty that the defendant’s acts caused the injury. Liability cannot be predicated upon surmise or conjecture as to the cause of the injury. Correspondingly, although a plaintiff may rely on reasonable inferences which may be drawn from the facts considered on a motion for summary judgment, an inference cannot be established on mere speculation, guess, or conjecture. (161 Ill. App. 3d 510, 514-15, 515 N.E.2d 142, 144.) In this case, there is nothing in the record to support any inference that defendants’ alleged failure to turn on flashers or warning lights or to place flares or other warning devices contributed in any way to the collision which caused the decedent’s death.

For the foregoing reasons, the judgment of the circuit court of Marion County is affirmed.

Affirmed.

WELCH and LEWIS, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    MARJORIE KOZAK, Indiv. and as Special Adm’r of the Estate of George W. Kozak, Sr., Deceased, Plaintiff-Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants-Appellees.—RAVALEE WILKERSON, Indiv. and as Special Adm’r for the Estate of Frank E. Wilkerson, Deceased, Plaintiff-Appellant, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants-Appellees.
    Fourth District
    Nos. 4—90—0340, 4—90—0341 cons.
    Opinion filed May 2, 1991.
    Rehearing denied June 20, 1991.

      James Walker, Ltd., of Bloomington, for appellants.
    Bret S. Babcock, of Peoria, for appellee W.R. Grace & Company.
    Margaret S. Garvey, Steven M. Hartmann, and Richard T. Sikes, all of Freeborn & Peters, of Chicago, for appellee Manville Corporation.
    James R. Carter and Cathy A. Stephens, both of Hafele, Thiemann & Carter, of Peoria, for appellee Sprinkmann Sons Corporation.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiffs Marjorie Kozak and Ravalee Wilkerson appeal from the orders of the circuit court of McLean County dismissing their complaints for failure to state a cause of action. We affirm.

On May 17, 1988, plaintiff Kozak filed a six-count complaint against multiple defendants, alleging that her deceased husband contracted asbestosis and cancer as a result of exposure to asbestos dust from the defendants’ products. Defendants Sprinkmann Sons Corporation of Illinois (Sprinkmann) and W.R. Grace & Company (Grace) moved to dismiss plaintiff’s complaint for failure to state a cause of action. The trial court granted both motions, dismissed the complaint as to Grace and Sprinkmann, and granted plaintiff leave to replead.

Plaintiff subsequently filed counts VII through XIV, which named Sprinkmann, Grace, and Manville Corporation Asbestos Disease Compensation Fund (Manville) as defendants. In counts VII through X, plaintiff sought recovery for wrongful death in her capacity as special administrator for the estate of her deceased husband. These are based upon theories of products liability, wilful and wanton misconduct, and conspiracy, respectively. With the exception of count X, which alleges conspiracy, all counts contain the following averments:

“1. George W. Kozak, Sr., Decedent, worked in the construction industry from 1946 into 1982.
2. Defendants, W. R. GRACE & CO., MANVILLE CORE ASBESTOS DISEASE COMPENSATION FUND, and SPRINKMANN SONS CORE OF ILLINOIS, or their corporate predecessors, were in the business of manufacturing products containing asbestos for use in the construction industry.
3. Hereafter ‘Defendant’ refers to each of the parties named in Paragraph 2.
4. Defendant manufactured and sold, including sales into Illinois, asbestos containing products, including pipe covering containing asbestos, block insulation containing asbestos, asbestos packing, cloth containing asbestos, and asbestos cement, for use in the construction industry in Illinois.
5. Defendant’s products gave off asbestos dust when used in the construction industry in Illinois.
6. George W. Kozak, Sr. was exposed to asbestos dust given off by Defendant’s products during his employment in the construction industry in Illinois.
7. Asbestosis and cancer are caused by exposure to asbestos.
8. George W. Kozak, Sr. contracted lung cancer as a result of being exposed to asbestos dust from Defendant’s products.
9. The lung cancer which killed George W. Kozak, Sr. was one indivisible injury and disease which resulted from the total and cumulative effect of all the asbestos to which he was exposed.”

Counts XI through XIV advance the same legal theories as counts VII through X, and also contain the foregoing averments. In these counts, however, plaintiff substituted herself individually as plaintiff and sought recovery for “injury to her husband/wife relationship,” medical care, and funeral expenses.

Sprinkmann, Grace, and Manville moved to dismiss counts VII through XIV with prejudice. On April 13, 1990, the trial court entered an order granting the motions of Sprinkmann and Grace. The trial court found that products liability counts VII and XI were essentially the same as counts I and IV, which were previously dismissed by the trial court for failure to identify the product produced or sold by each defendant, and for failure to state when and where the exposure took place. Counts VIII and XII, which alleged wilful and wanton misconduct, were dismissed because the conduct alleged in these counts was no more egregious than that alleged in negligence counts IX and XIII. The court found that counts IX and XIII failed to properly charge the defendants for the reasons previously found with reference to counts III and VI. Counts III and VI were previously dismissed because the plaintiff failed to allege that “the Defendant had a duty to warn users of its material and that duty must relate to the type of product being manufactured or supplied by this Defendant and that those exposed to the product would not be knowledgeable concerning the character of the product being used.”

The trial court filed a separate order on May 2, 1990, dismissing counts VII through XIV against Manville. The court found that counts VII, VIII, IX, XI, XII, and XIII “fail to identify the product produced or sold by a Johns-Manville entity to which plaintiff’s decedent was allegedly exposed, and when and where the plaintiff’s decedent was exposed to any Johns-Manville product.” Plaintiff Kozak appeals from the dismissal-of counts VII, VIII, IX, XI, and XII, and does not contest the dismissal of conspiracy counts X and XIV.

On October 11, 1988, plaintiff Wilkerson filed a 12-count complaint against multiple defendants, alleging that her deceased husband contracted lung cancer as a result of exposure to asbestos dust from defendants’ products. Defendants Sprinkmann and Grace moved to dismiss plaintiff’s complaint for failure to state a cause of action. The trial court granted both motions, dismissed the complaint as to Sprinkmann and Grace, and granted plaintiff leave to replead.

On September 29, 1989, plaintiff filed amended counts IV, VIII, and XII and additional counts XIII through XXI naming Sprinkmann, Grace, and Manville as defendants. Counts XIII through XXI, which are based upon theories of products liability, wilful and wanton misconduct, and negligence, contain the following averments:

“1. Frank E. Wilkerson, Decedent, worked in the construction industry from 1966 until he was totally disabled in April, 1987.
2. Defendants, W. R. GRACE & CO., MANVILLE CORP. ASBESTOS DISEASE COMPENSATION FUND, and SPRINKMANN SONS CORE OF ILLINOIS, or their corporate predecessors, were in the business of manufacturing products containing asbestos for use in the construction industry.
3. Hereafter ‘Defendant’ refers to each of the parties named in Paragraph 2.
4. Defendant manufactured and sold, including sales into Illinois, asbestos containing products, including pipe covering containing asbestos, block insulation containing asbestos, asbestos packing, cloth containing asbestos, and asbestos cement, for use in the construction industry in Illinois.
5. Defendant’s products gave off asbestos dust when used in the construction industry in Illinois.
6. Frank E. Wilkerson was exposed to asbestos dust given off by Defendant’s products during his employment in the construction industry in Illinois.
7. Asbestosis and cancer are caused by exposure to asbestos.
8. Frank E. Wilkerson contracted lung cancer as a result of being exposed to asbestos dust from Defendant’s products.
9. The lung cancer which killed Frank E. Wilkerson was one indivisible injury and disease which resulted from the total and cumulative effect of all the asbestos to which he was exposed.”

Sprinkmann moved to dismiss counts XIII through XXI for failure to state a cause of action. Grace and Manville moved to dismiss counts IV, VIII, and XII, as well as counts XIII through XXI. The trial court granted the motions of all three defendants, citing defects in plaintiff’s pleadings identical to those cited in the trial court’s orders dismissing the complaints of Kozak. Plaintiff Wilkerson now appeals from the dismissal of counts XIII through XXI, and does not contest the dismissal of counts IV, VIII, and XII, which allege conspiracy.

On August 15, 1990, this court granted Sprinkmann’s motion to consolidate the appeals of Kozak and Wilkerson.

On appeal, plaintiffs contend that the trial court erred in dismissing their complaints because there is no requirement that a plaintiff plead the trade name of a defendant’s asbestos-containing product.

In Costello v. Unarco Industries, Inc. (1984), 129 Ill. App. 3d 736, 473 N.E.2d 96, rev’d on other grounds (1986), 111 Ill. 2d 476, 490 N.E.2d 675, plaintiff filed a multicount complaint sounding in negligence and products liability against a number of asbestos and asbestos-product suppliers. In affirming the trial court’s dismissal of plaintiff’s complaint, this court cited several defects in the pleadings, including the following:

“The second flaw in plaintiff’s complaint stems from the use of boiler-plate pleading paragraphs. In count I of plaintiff’s second amended complaint, paragraphs 3 through 11 each identically alleged that nine different defendants were corporations in McLean County, which were ‘during the time relevant to the allegations herein in the business of distributing asbestos.’ ‘Asbestos’ is previously defined as asbestos fiber and products containing asbestos in the complaint.
We view these allegations as insufficient in that they fail to apprise the defendants of both the injury-producing product and the place in the chain of production of the products which they were alleged to have occupied.” (Costello, 129 Ill. App. 3d at 744, 473 N.E.2d at 102.)

Plaintiffs’ complaints are similarly insufficient. We recognize that the complaints at issue in this case do more than simply allege that defendants manufactured and sold asbestos-containing products. Plaintiffs provide additional detail by listing the generic names of some of the products manufactured and sold by defendants “for use in the construction industry” which allegedly contributed to the plaintiffs’ decedents’ injuries. These complaints are no more successful in apprising the defendants of the injury-producing product or products than the complaint at issue in Costello.

Plaintiffs argue that their complaints provide far more product information than was contained in a complaint which the Illinois Supreme Court “found sufficient” in Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 546 N.E.2d 580. In Board of Education, 34 school districts filed complaints seeking to recover the removal and repair costs of asbestos-containing material in their buildings from numerous defendants who were involved in the manufacture or distribution of such materials. The trial court granted the defendants’ motion to dismiss each of the 13 causes of action alleged in the plaintiffs’ complaints. The appellate court reversed the trial court’s dismissal of several counts, including those based on strict liability and negligence. In addition to other issues, the Illinois Supreme Court addressed the sufficiency of the plaintiffs’ negligence and products-liability complaints. The court reasoned that “[t]he linchpin for both of these causes is whether the complaints sufficiently allege that asbestos has caused damage to other property or injury to persons so as to fall within a tort claim, as opposed to a contract cause of action.” (Board of Education, 131 Ill. 2d at 439, 546 N.E.2d at 585.) The court concluded that the complaint alleged sufficient facts to establish a tort action. Board of Education, 131 Ill. 2d at 445, 546 N.E.2d at 588.

The Board of Education court did not address the adequacy of the product identification set forth in the plaintiffs’ complaints. Further, there is nothing in the appellate or supreme court opinions to suggest that the complaints were ever challenged on this basis. Hence, Board of Education provides no guidance in evaluating the sufficiency of the complaints in this case.

Under the fact-pleading requirements of Illinois, plaintiffs’ vague, generic, and incomplete description of the alleged injury-producing products fails to provide an adequate factual foundation for all counts at issue in this appeal. The fact-pleading requirements of Illinois require a complaint to apprise a defendant of sufficient facts upon which to base a defense. (Costello, 129 Ill. App. 3d at 744-45, 473 N.E.2d at 102.) The present pleadings are more in the nature of notice pleadings, and they are examples of why we should not adopt such pleadings. Assume a defendant supplied an asbestos product to the construction industry of Illinois. How can that defendant ascertain whether its product came into contact with one or more of the plaintiffs? Evidently plaintiff does not have that knowledge or it could have been pleaded. Basically, what defendant is being requested to do is to check every sale made in Illinois, then trace the. chain of use and determine from the final user’s records (if any records still exist) whetherplaintiff or plaintiff’s decedent worked with the product.

The social issue, that of compensating those injured by asbestos, does not justify this massive, if not impossible, task being placed on defendants. If pleadings like those used in the present cause are allowed to stand, massive attorney fees and investigation expenses are going to be required before defendants will be able to answer a complaint. Most likely the end result will be a dismissal, summary judgment, or a settlement forced on defendants by the anticipated costs of defense. Our system of pleading is structured to alleviate, at least to some extent, this waste of time and money. Extorting settlements by burdening defendants with massive litigation expenses is no more part of our system of justice than depriving injured parties of rightful compensation. The trial court’s dismissal of all counts is affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RODNEY CONARD, Defendant-Appellee.
    Third District
    No. 3—90—0514
    Opinion filed May 21, 1991.

      William Poncin, State’s Attorney, of Macomb (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The State appeals the granting of a suppression motion in favor of the defendant, Rodney Conard. The sole question on appeal is whether the trial court properly suppressed the evidence. We affirm.

The record shows that the State charged the defendant with residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—13). The defendant subsequently filed a motion to suppress, alleging that the police had improperly seized a coin purse from his person.

At a hearing on the motion, Officer Robert Fitzgerald testified that he was patrolling Macomb on the afternoon of November 28, 1989. Around 4:47 p.m., he heard a dispatch that a suspicious person had left a residence at 918 West Jefferson Street. The person was described as a 5-foot 10-inch white male, weighing about 170 pounds and wearing faded blue jeans, a tan vest, sunglasses, and a black stocking cap.

The officer proceeded to the neighborhood of the home in question. When he was about two blocks from the home, he saw the defendant walking along the side of the street. The officer described him as being about 5 feet 10 inches weighing 170 to 180 pounds, and wearing faded blue jeans, a dark blue, hooded sweat shirt, a brown jacket, a green baseball cap, and sunglasses. The defendant was walking toward 918 West Jefferson Street.

Fitzgerald testified that he pulled into a driveway about a half block in front of the defendant and waited for him to approach. He then stepped out of his car and began questioning him. The defendant said that he had been in a bar since he left work and was on his way to get something to eat. When the officer said that a person matching his description had been seen leaving a house on West Jefferson Street, the defendant said that he had been looking for a friend at some houses on Jefferson Street. He gave the name of his friend, but the officer could not recall it.

Fitzgerald stated that the defendant complained that he was being harassed. Officer Leo Icenogle then arrived on the scene and joined the discussion. When Fitzgerald asked the defendant his,name, the defendant gave his correct name and birth date, but he could not produce any identification.

Fitzgerald believed that the defendant was acting in a slightly hostile manner, so he frisked him for weapons. He found a pocketknife in his pants pocket and felt two long thin objects and a harder, bulky object in his coat. Fitzgerald was unable to remove them because they had fallen through a hole in a pocket and were stuck in the jacket lining. On Fitzgerald’s instructions, the defendant took them out, revealing them to be two marking pencils and a leather coin purse.

The defendant said that his father had given him the coin purse that morning and that it contained change. Although Fitzgerald did not ask him to, the defendant opened it and showed him its contents. Fitzgerald verified that it contained change and a Red Cross pin.

Fitzgerald further testified that Officer Earl Hedeen arrived, on the scene with Don Smith, the person who had phoned in the report. Hedeen told Fitzgerald that Smith thought the defendant was the man who had been in the home, but he was not certain.

Hedeen took Smith home and returned with Bud Haney, the owner of the home at 918 West Jefferson. Haney said that the coin purse resembled one that was missing from his home and correctly described its contents. At that point, the officers told the defendant he was under arrest.

Officer Icenogle then testified. His testimony was in general agreement with that of Officer Fitzgerald.

Officer Hedeen testified that after hearing the report of the possible break-in, he proceeded to 918 West Jefferson. He walked in through the open back door and made a quick search of the premises. No one appeared to be home; He then went outside and spoke, with Don Smith. Smith told him he had seen someone whom he did' not recognize enter the home. Since Smith thought it could be a relative, he called the home, but there was no answer. Smith then saw the man leave. Smith called out to him, but the man put his head down and quickly walked away.

Smith agreed to accompany Hedeen to view the defendant. When they arrived at the scene of the questioning, Smith said that the defendant looked like the man he had seen, but he was not certain. Hedeen then returned Smith to his home.

The defendant testified that he was wearing, white gloves when Fitzgerald approached him. He cooperated with the officers, although he believed they were harassing him. He also said that after he produced the purse, Fitzgerald opened it.

The trial court found that Fitzgerald had sufficient grounds to stop the defendant. The court further found, however, that Fitzgerald did not have grounds to fear for his safety and therefore should not have frisked the defendant. The court also found that even if a search for weapons were justified, the officer exceeded the scope of the search by asking the defendant to produce the coin purse.

Lastly, the court found that the evidence was not admissible under the inevitable discovery doctrine. The court stated that in order for the doctrine to apply, the evidence had to show that the officers could have lawfully arrested the defendant, based solely on Smith’s identification. The court found that the identification did not provide sufficient grounds for a lawful arrest. Accordingly, it granted the motion to suppress.

On appeal, the State argues that the trial, court erred. It first contends that under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and its progeny, Fitzgerald made a valid search of the defendant. The defendant replies that Fitzgerald lacked sufficient grounds to perform a Terry stop. He further argues that even if Fitzgerald had sufficient grounds, he did not perform a valid search.

Initially, we note that the trial court’s decision should only be-reversed if it was against the manifest weight of the evidence. People v. Hunt (1989), 188 Ill. App. 3d 359, 544 N.E.2d 118.

Turning to the first question of whether Fitzgerald performed a valid Terry stop, we agree with the trial court’s finding that he did: In order to detain the defendant, Fitzgerald must have had a reasonable suspicion, based on objective facts, that the defendant was involved in criminal activity. (Brown v. Texas (1979), 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637.) Based on the information given in the dispatch and the defendant’s appearance, we find that Fitzgerald was justified in stopping the defendant for further investigation.

As for whether Fitzgerald made a valid search, we note that since he performed a Terry stop, he could only make a pat-down search if he had a reasonable belief, based on articulable facts, that his safety was in danger. (People v. Brown (1989), 190 Ill. App. 3d 511, 546 N.E.2d 95.) The mere fact that the defendant was a burglary suspect did not give Fitzgerald the automatic right to frisk him. People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837.

In the instant case, there was little evidence that Fitzgerald was in danger. He and Icenogle outnumbered the defendant, and the defendant offered little resistance. Moreover, at the time of the search there was a substantial question as to whether the defendant had committed a crime. There were some discrepancies between the suspect’s description and the defendant’s appearance, and there was no specific evidence that anyone had removed property from the home. Based on the foregoing, we find that the court’s conclusion that Fitzgerald should not have searched the defendant was not against the manifest weight of the evidence.

We also find that even if the officer had a right to search, the search went beyond its proper scope. In a Terry stop, an officer may only make a search reasonably designed to discover objects capable of being used as weapons. (People v. Campbell (1987), 161 Ill. App. 3d 147, 514 N.E.2d 241.) He may therefore only remove an object concealed in clothing if he reasonably believes it to be a weapon. See People v. Gunsaullus (1979), 72 Ill. App. 3d 440, 391 N.E.2d 142.

This case is similar to People v. McCarty (1973), 11 Ill. App. 3d 421, 296 N.E.2d 862, where the court held that a plastic bag filled with cannabis could not reasonably be suspected of being a weapon. As in McCarty, we find it difficult to understand how Fitzgerald could reasonably believe that the coin purse was a weapon, given its position and shape. Significantly, instead of making further efforts to remove the coin purse or asking the defendant to take off his jacket, he allowed the defendant to produce the object. We therefore hold that the trial court’s finding that the search exceeded its permissible scope was not against the manifest weight of the evidence.

Lastly, the State argues that the purse would have been discovered under the inevitable discovery doctrine. It notes that under this doctrine, illegally seized evidence may be admitted if it can be shown that the evidence would have ultimately been discovered by lawful means. (Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501.) The State argues that even if the coin purse had not been discovered, the police would have arrested the defendant. Consequently, the coin purse would have been found in a search incident to arrest or in an inventory search.

We disagree. Absent the coin purse, the police had little evidence that the defendant had committed a crime. Smith’s identification was uncertain, and there was little other evidence that the defendant had removed property from the home. Accordingly, we hold that the trial court could properly conclude that the evidence would not have been inevitably discovered by lawful means.

The judgment of the circuit court of McDonough County is affirmed.

Affirmed.

BARRY and McCUSKEY, JJ., concur.


author: JUSTICE McCUSKEY

text:
      In re MARRIAGE OF HARRIET E. THOMAS, Petitioner-Appellee, and MICHAEL THOMAS, Respondent-Appellant.
    Third District
    No. 3—90—0671
    Opinion filed May 22, 1991.

      Walter D. Braud and Duane Thompson, both of Braud/Warner, Ltd., of Rock Island, for appellant.
    H. Reed Doughty, of Nagle, Harris, Cook, Payson & Doughty, of Davenport, Iowa, for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The trial court entered a judgment dissolving the marriage of the petitioner, Harriet E. Thomas, and the respondent, Michael Thomas. The court also entered an order dividing the parties’ property between them. Michael appeals the court’s division of the property. We find that we do not have jurisdiction to consider this appeal and therefore dismiss it.

The only facts necessary for our determination are these: the trial court failed to dispose of two pieces of property, a building located at 513 East Dover Court, Davenport, Iowa, and a residential duplex located in Galesburg, Illinois.

Initially, we note that neither of the parties has raised the issue of jurisdiction in this appeal. However, an appellate court has a duty to consider its own jurisdiction whether or not the issue was raised by the parties. In re Estate of Chlebos (1990), 194 Ill. App. 3d 46, 550 N.E.2d 1069.

Supreme Court Rule 301 (134 Ill. 2d R. 301) generally provides that this court has jurisdiction over a timely appeal from a final judgment. An order will be classified as final when it terminates the litigation on the merits of the case so that, if affirmed, the trial court has only to proceed with execution of the judgment (Schwind v. Mattson (1974), 17 Ill. App. 3d 182, 307 N.E.2d 673).

In general, a petition for dissolution is not fully adjudicated until.all of the issues, i.e., grounds, child custody, child support, maintenance, and property distribution, are resolved. In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137.

In the instant case there has never been a final judgment to support an appeal. The trial court simply failed to dispose of all the property in its order. As such, the court’s order was not final and appealable. (See King v. King (1985), 130 Ill. App. 3d 642, 474 N.E.2d 834.) We note in so finding that none of the supreme court rules providing for interlocutory appeals is applicable here.

Finally, we note the parties acknowledge in their briefs the trial court failed to dispose of two pieces of property. No doubt each of them became aware of this circumstance following receipt of the trial court’s order. The proper procedure at that point would have been to bring this to the trial court’s attention in a motion to reconsider. This would have provided the trial court the opportunity to correct the matter and saved both this court and the parties valuable time.

Based on the foregoing, we find no appealable order and dismiss the appeal.

Appeal dismissed.

HAASE and GORMAN, JJ., concur.


author: JUSTICE HAASE

text:
      In re LYNN MANIS, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Lynn Manis, Respondent-Appellant).
    Third District
    No. 3—90—0557
    Opinion filed May 21, 1991.

      Elizabeth Sircher, of Guardianship and Advocacy Commission, of Chicago, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Jay P. Hoffman, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The trial court found that the respondent, Lynn Manis, was a person subject to involuntary admission and ordered him hospitalized in a mental health facility (Ill. Rev. Stat. 1989, ch. 91½, par. 3—600). The respondent appeals.

At the commitment hearing, psychiatrist U.N.B. Durai testified that he was the respondent’s treating physician. He stated that the respondent suffered from schizophrenia, exhibited delusional behavior, and was uncooperative with the medical staff at the mental health facility. As evidence of the respondent’s delusions, Dr. Durai noted that the respondent’s father had terminal cancer, but the respondent insisted that his father had contracted a vermin infestation from his granddaughter while changing her diapers. Dr. Durai opined that the respondent was unable to provide for his own basic physical needs so as to guard himself from physical harm. In particular, he noted that the respondent would not take his schizophrenia medication unless instructed to and that he remained in bed all day and had to be reminded to perform every activity of daily living, including eating.

Jim Manis, the respondent’s brother, testified that the respondent had been living with his parents for the past nine years. During that time, he had never held a job and had no source of income. Jim noted that the respondent could no longer live with his parents due to his father’s cancer and that no other relatives could take him in. He opined that if the respondent were released into an uncontrolled environment, he would be unable to obtain food or shelter. Jim testified that Lynn Manis had previously been treated for schizophrenia approximately 11 years before in New York shortly after withdrawing from a master’s program at the University of Michigan. Jim stated that before the respondent went to live with his parents, Jim and his father had found the respondent living on the streets of New York, eating only cigarettes, sugar, coffee, and occasionally pancakes.

Nurse’s aide Cindy Gilson testified that she was caring for the respondent’s father in his home. On one occasion, she had seen the respondent hit his father on the feet and say, “Old man, I’m not your son today. I’m a professional worker.” That and other incidents led to the respondent’s being removed from the house.

The respondent testified that he was 42. He planned to ask an uncle in Tennessee if he could live with him. He did not believe he had a mental illness and would not take any medication if he were released from the facility. He noted that when he was living in New York, he was only on the street for 30 days. He further noted that he was not eating tobacco but was merely placing a little in his mouth in an attempt to quit smoking.

The trial court found that the State had proved by clear and convincing evidence that the respondent should be involuntarily committed. In so finding, it noted that while a person could not be committed merely because he would otherwise live on the street, the State had shown that the respondent was unable to provide for his basic physical needs so as to guard himself from physical harm.

On appeal, the respondent argues that the State failed to show by clear and convincing evidence that he was unable to care for himself so as to guard himself against physical harm.

Section 1—119(2) of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 91½, par. 1—119(2)) defines a person subject to involuntary admission as “[a] person who is mentally ill and who because of his illness is unable to provide for his basic physical needs so as to guard himself from serious harm.” We note that the need for mental health treatment must be shown by clear and convincing evidence. (In re Crenshaw (1978), 62 Ill. App. 3d 260, 378 N.E.2d 1260.) Mere proof of the presence of mental illness is not by itself sufficient to establish that a person needs mental treatment. (In re Sciara (1974), 21 Ill. App. 3d 889, 316 N.E.2d 153.) However, the State is not required to prove that the respondent is a definite danger to himself or society. (In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.) Thus, courts do not have to wait until someone is harmed before ordering the hospitalization of a respondent. In re Haber (1979), 78 Ill. App. 3d 1120, 398 N.E.2d 121.

In the instant case, the respondent acknowledged that if he were released he would not take his medicine. More important, there was considerable evidence that his schizophrenia rendered him incapable of providing even the most rudimentary necessities for himself. Although one is certainly free to live on the street, a person who demonstrates that he cannot even feed himself will not be sent out to starve. Based on the evidence presented, we find that the trial court did not manifestly err in concluding that if the respondent were released, there was a reasonable expectation he would be unable to provide for his basic personal needs.

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

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID MITCHELL, Defendant-Appellant.
    Third District
    No. 3—89—0752
    Opinion filed May 23, 1991.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, David Mitchell, appeals his eight-year sentence for aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(a)).

At trial, Officer Greg Piazza testified the defendant had lived with Piazza’s sister, Deanna, until about a year before the offense. On April 14, 1989, Deanna married another man. After Piazza attended the wedding reception, he, his fiancee, and another woman went to a tavern. Around midnight they left the tavern to go to Baxter’s Bar and Grill.

As they walked toward Baxter’s, Piazza saw the defendant standing across the street. The defendant crossed the street and said, “Give Deanna my best.” Piazza and his companions said nothing. When they arrived at Baxter’s and learned there was a cover charge, they decided not to go inside. As they walked away, the defendant yelled, “Hey, pussy.” After Piazza made an obscene gesture, the defendant ran in front of him and began taunting him. Piazza called the defendant a lowlife and said he was not going to fight.

The defendant turned his back as if he were about to leave and put his hand in his pocket. He then spun around and punched Piazza in the left eye, causing him to fall to the ground. Piazza, though dazed and bleeding, was able to walk to the police station. His two companions then took him to the emergency room for treatment. As a result of his injury, he missed six weeks of work.

On cross-examination, Piazza admitted he had drunk about eight beers in the four hours prior to the offense. However, he denied he was intoxicated.

Piazza’s two companions then testified. Their testimonies generally corroborated Piazza’s testimony. They also testified that after the defendant punched Piazza, an object fell on the ground. The defendant retrieved it and ran away.

Dennis Mathis testified he saw the defendant and the victim arguing in the street. The defendant then punched Piazza. He did not see Piazza strike the defendant before the punch was thrown.

Robert Hinson testified he and the defendant had been drinking on the night of the incident. After they went to two taverns, they decided to go to Baxter’s. As they approached the bar, they saw Piazza with two women. The defendant told Piazza to give Deanna his best, but Piazza uttered an obscenity. A short while later, Piazza made an obscene gesture toward the defendant. The two then began arguing. Eventually, after Piazza pushed the defendant, the defendant hit him. He did not have anything in his hand when he threw the punch.

Doctor Thomas Kron, a plastic surgeon, testified he treated Piazza’s injuries. Piazza had great pain when he tried to open his mouth as well as numbness in his face. Dr. Kron found Piazza’s left cheekbone was broken in at least three places. Additionally, the nerves were damaged by the bones being out of place. He performed reconstructive surgery by making three incisions and wiring the bones into position. During the surgery, he found a crack in the eye socket which required repair with a plastic material. The wire and plastic inserts are permanent. Piazza was out of work and in pain for six weeks following the incident.

The jury found the defendant guilty of aggravated battery. The cause then proceeded to sentencing. According to the presentence report, the 26-year-old defendant had two previous convictions for burglary, one conviction for battery, and one conviction for theft. He was on probation when he committed the instant offense. At the time of sentencing, he faced a pending charge for driving while his license was revoked.

The report further indicated the defendant was skilled in carpentry and welding. Additionally, while serving a jail sentence, he had obtained a GED certificate.

The defendant’s attorney stated that prior to the offense, the defendant had been employed at a salary of $350 a week. Although the defendant had lost his job as a result of the offense, he could return when his case was resolved. In his statement of allocution, the defendant admitted he had been wrong in punching Piazza.

The court found that because of the defendant’s prior record, he was eligible for an extended term of up to 10 years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005—5—3.2(b)(1), 1005—8—2(a)(5).) It then imposed an eight-year term of imprisonment.

The defendant argues on appeal that the court abused its discretion in imposing the sentence. He contends the court failed to consider the fact he was intoxicated and in a heated argument when he committed the offense. He also claims the court failed to give proper weight to his rehabilitative potential.

We begin by noting that a proper sentence is based on many factors, including the circumstances of the offense. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) In considering those circumstances, the court may consider the degree of harm caused by the defendant, even where bodily harm is arguably implicit in the crime. (Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.) The defendant’s prior criminal history is also relevant. (People v. Sowinski (1986), 148 Ill. App. 3d 231, 498 N.E.2d 650.) Since the trial court is in a better position to weigh the sentencing factors, we will not reverse its determination unless it clearly abused its discretion. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

The trial court’s decision was supported by evidence that the defendant was the aggressor in the offense and by the serious harm he caused the victim. We also find strong support for the sentence in the defendant’s previous criminal history and the fact he was on probation when the crime occurred. Although there was also mitigating evidence, we find after viewing the record as a whole that the court’s determination was not an abuse of discretion. We therefore affirm the eight-year sentence.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

HAASE and BARRY, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OZELL RANDLE, JR., Defendant-Appellant.
    Third District
    No. 3—90—0527
    Opinion filed May 21, 1991.

      Verlin R. Heinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Rita Kennedy Hertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Ozell Randle, Jr., was charged by indictment with the offenses of attempted murder, armed violence, and two counts of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4(a), 9—1(a)(1), 33A—2, 12—4(a),(b)(1)). At the defendant’s request, the jury was also instructed about the offenses of reckless conduct and unlawful use of weapons. The jury subsequently found the defendant not guilty of attempted murder and guilty of the remaining offenses. The trial judge sentenced the defendant to concurrent terms of imprisonment of 20 years for- armed violence, 5 years on each count of aggravated battery, 364 days for reckless conduct, and 364 days for unlawful use of weapons. The defendant appeals.

The State’s witnesses testified that in the late evening of September 23, 1988, and the early morning of September 24, 1988, the defendant was at Roberson’s Lounge. While at Roberson’s, he came into contact with Antuane Brown. The defendant and Brown had a heated discussion during which Brown put the defendant against a wall. The altercation ended when one of Roberson’s bouncers intervened.

Brown then left Roberson’s with his fiancee and two of his friends. The defendant followed him out of Roberson’s and continued talking to him. After Brown told the defendant to be quiet and pushed him against a wall, the two began wrestling. During the encounter, Brown slammed the defendant onto a nearby car. Brown’s friends then separated the two men, but the defendant thereafter pulled a gun. Brown lunged for it and struggled with the defendant. During the struggle, two shots were fired into the air. A third shot struck Brown and knocked him down. The defendant then left the scene.

Witnesses for the defense testified to substantially similar circumstances with a couple of notable exceptions. Defense witnesses testified that rather than separating Brown from the defendant, Brown’s friends were hitting the defendant. They also testified that it was Brown, not the defendant, who drew the gun.

The defendant argues on appeal that his convictions for armed violence, aggravated battery, and reckless conduct must be reversed and his cause remanded for retrial because the jury verdicts on those offenses were legally inconsistent. Alternatively, he requests in light of “one act, one crime” principles that we vacate his convictions for aggravated battery and reckless conduct. We reverse and remand based on the defendant’s first argument and therefore need not reach his second argument.

In People v. Spears (1986), 112 Ill. 2d 396, 493 N.E.2d 1030, the Illinois Supreme Court addressed a similar inconsistent verdicts issue. There, the defendant had been convicted of attempted murder, armed violence, and reckless conduct for an attack on his estranged wife. The supreme court held that the conviction for armed violence predicated on aggravated battery was legally inconsistent with the reckless conduct conviction. The court reasoned that the defendant could not simultaneously possess reckless and knowing intent.

The State argues that Spears is not dispositive in the instant case, since the supreme court did not address the issue of whether a claim of legally inconsistent verdicts can be waived. The supreme court held that since the State failed to raise the waiver issue in its brief in the appellate court, the waiver issue itself was waived.

In the instant case, the State argues that the defendant waived his claim of legally inconsistent verdicts by failing to raise the issue in the trial court and by inviting the error. We find, however, that we need not reach the waiver question since this issue rises to the level of plain error.

Before the plain error rule may be used as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights has been committed. (134 Ill. 2d R. 615(a); People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.) Cases involving legally inconsistent verdicts affect substantial rights since the claim of error goes directly to the validity of the judgments of conviction. People v. Roman (1981), 98 Ill. App. 3d 703, 424 N.E.2d 794.

The State next contends that separate acts support the defendant’s convictions for armed violence and reckless conduct. Specifically, it argues that the reckless conduct conviction was based on one of the confrontations that occurred before the actual shooting, while the armed violence conviction was based on the shooting itself. We find no merit in this argument.

There is no evidence in the record to indicate that Brown was physically injured by the defendant prior to the shooting. The State itself admits that there is a lack of evidence of harm to Brown other than the shooting. Nevertheless, it proposes that the jury could have found that such harm occurred. In support of this proposition, the State cites the following cases: People v. Brown (1974), 18 Ill. App. 3d 1049, 310 N.E.2d 498; People v. Paez (1977), 45 Ill. App. 3d 349, 359 N.E.2d 1083; and People v. Taylor (1977), 53 Ill. App. 3d 810, 368 N.E.2d 950. However, in each of those cases witnesses testified that some harm had occurred, whereas in this case there was no testimony that the defendant harmed Brown other than by shooting him. We therefore cannot accept the State’s argument that the jury could have rationally found that such harm occurred.

We hold that the defendant’s convictions were inconsistent under Spears and that that inconsistency constituted plain error. We further hold that the jury could not have rationally based the armed violence and reckless conduct convictions on different actions by the defendant. We therefore reverse the defendant’s convictions and remand the cause for a new trial. We note that double jeopardy does not attach since the evidence at trial was sufficient to sustain a verdict. People v. Moore (1984), 121 Ill. App. 3d 570, 459 N.E.2d 1121.

The judgment of the circuit court of Peoria County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

STOUDER, P.J., and GORMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ONE 1986 FORD RANGER PICKUP TRUCK et al., Defendants-Appellants.
    Third District
    No. 3—90—0606
    Opinion filed May 21, 1991.

      Dean A. Stone, of Macomb, for appellant.
    Samuel Naylor VI, State’s Attorney, of Carthage (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The State filed a petition seeking the forfeiture of defendant Donald Tunis’ Ford Ranger pickup truck. The trial court granted the petition. The defendant appeals.

The record shows that in addition to filing a forfeiture petition, the State charged the defendant with unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 56½, par. 1401 et seq.). The defendant pled guilty to the possession charge, but contested the forfeiture petition.

The evidence on the forfeiture petition showed that on January 20, 1989, officers of the Hancock County sheriff’s office and the city police of Hamilton, Illinois, executed a search warrant at Tunis’ home. When the officers entered the home, another individual was purchasing methamphetamine from Tunis.

The police found a loaded revolver in the home during the search. Tunis told them he had a firearm owner’s identification (FOID) card in his wallet, which was in the glove compartment of his truck. He then gave Deputy Bill Ferrill the keys to the truck. Ferrill found the locked truck on Tunis’ property, near the home. Inside in plain view were some pills Ferrill described as “look alike drugs.” Deputy Ferrill then opened the unlocked glove compartment and found a wallet, which he took back into the house. Upon opening and examining the wallet, Ferrill found Tunis’ personal identification items, including the FOID card. He also found a small packet containing a substance later determined to be methamphetamine. The packet was approximately one-quarter inch long and one-quarter inch to one-half inch wide. It could not be seen until the wallet was opened and examined. Deputy Ferrill showed the packet to Sheriff Yager, who in turn showed Fer-rill five identical packets that had been found on Tunis during the execution of the search warrant.

The trial court found that the vehicle was subject to forfeiture under the Illinois Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1100 et seq.). On appeal, the defendant argues that mere possession of a controlled substance in a wallet in the glove compartment of a vehicle, absent any other evidence that the vehicle is being used in the commission of a possessory offense, does not permit forfeiture of the vehicle. The thrust of his argument is that his truck did not assist him in the criminal act. The defendant notes that he would have been guilty of the crime of possession of a controlled substance regardless of the presence or use of his truck, since the controlled substance was within an item of his personal property.

We note that the trial court agreed there was no question that the defendant could have been convicted of possession of a controlled substance with or without the presence of the truck. It correctly found, however, that the question was not whether the commission of the crime could have occurred without the vehicle, but rather whether the truck “facilitated” the commission of the crime. People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592.

The defendant claims that the truck did not facilitate the commission of the crime. To support this claim, he relies primarily upon two cases: People ex rel. Barra v. Lee (1984), 128 Ill. App. 3d 128, 470 N.E.2d 46, and People ex rel. Kilquist v. One 1978 Mazda GLC Automobile, Vehicle Identification Number FA4TS660606 (1988), 165 Ill. App. 3d 540, 518 N.E.2d 1287.

In Lee, police stopped a van and found in the driver’s purse a small plastic bag containing pills that were later determined to be a controlled substance. The trial court ordered the vehicle forfeited. We reversed, noting that the contraband was completely concealed within a closed purse and that the vehicle therefore furnished no additional dimension of privacy.

In One 1978 Mazda GLC Automobile, the appellate court affirmed the trial court’s denial of a vehicle forfeiture petition. The owner of the vehicle had been arrested for DUI after he and his vehicle were found in a ditch. One of the officers undertook an inventory search of the vehicle and found a duffle bag. Inside the bag was a shaving kit, and inside the shaving kit was a clear plastic bottle containing a controlled substance. The court found that although the duffle bag and shaving kit were both unzipped, the drugs were not visible until the officer pulled open the bag and the kit. Noting that the case was similar to Lee, the court denied the forfeiture petition since the vehicle furnished no additional dimension of privacy.

In the instant case, the State argues that the truck was used to facilitate the commission of the crime by adding a dimension of privacy. In support of its argument, the State relies upon People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592, and People ex rel. Vandersnick v. One 1987 Dodge Charger Automobile Vehicle Identification Number 1B3BZ44C5HD525894 (1990), 193 Ill. App. 3d 547, 550 N.E.2d 271.

Miller made it clear that to the extent an automobile adds a dimension of privacy, it also facilitates possession. Then, in One 1987 Dodge Charger, this court noted that the vehicle need not afford the exclusive means of privacy. In that case, we reversed the trial court’s refusal to order the forfeiture of a vehicle where cocaine was found in a Tupperware container in the glove compartment of an automobile. We concluded that the vehicle facilitated the possession offense since it added a measure of privacy. Our conclusion was premised on the fact that possession of the cocaine was made easier by concealing it in the glove compartment.

A forfeiture proceeding is civil in nature so the State is only required to establish its right to the property forfeited by a preponderance of the evidence. (People ex rel. Vandersnick v. One 1987 Dodge Charger Automobile Vehicle Identification Number lB3BZ44C5HD525894 (1990), 193 Ill. App. 3d 547, 550 N.E.2d 271.) Additionally, on review, an appellate court will not reverse the trial judge’s order regarding forfeiture unless the ruling is against the manifest weight of the evidence. People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.

In the case at hand, the record supports the trial court’s finding that the truck facilitated the offense by adding a dimension of privacy. The presence of the drugs was not merely incidental to the use of the truck. Rather, concealment and security were afforded the methamphetamine by virtue of its being stored in the glove compartment of a locked truck. Therefore, the truck offered an added dimension of privacy that made possession easier.

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

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.