author: JUSTICE UNDERWOOD JUSTICE GOLDENHERSH,

text:
    (No. 55723.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DENNIS BRYANT, Appellee.

      Opinion filed January 24, 1983.

      CLARK, J., took no part.
    GOLDENHERSH, J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., Assistant Attorney General, and Michael E. Shabat and Gregory J. Ellis, Assistant State’s Attorneys, all of Chicago, of counsel), for the People.
    Steven Clark, Deputy Defender, and Phillip J. Zisook, Assistant Appellate Defender, of the Office of State Appellate Defender, of Chicago, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

A Cook County jury convicted defendant, Dennis Bryant, on two counts of armed robbery for the holdup of an Evanston 7-Eleven store. He was sentenced to two concurrent 12-year terms of imprisonment. In the appellate court, the State agreed that defendant should only have been charged with one count of armed robbery. After finding erroneous an in-court identification of defendant and the introduction of a hearsay statement concerning his guilt, the appellate court reversed defendant’s conviction on the remaining count. (100 Ill. App. 3d 17.) We granted the State’s petition for leave to appeal.

On December 23, 1978, Harold and Norma Lederer were accosted inside the 7-Eleven store by a young black male who was armed with a pistol. The robber took small bills and loose change from the cash register and packets of bills wrapped in 7-Eleven cash register tape, some of which bore Harold’s initials, from a floor safe. While Harold, the assistant night manager, was opening the register and safe, the gunman stood next to Norma under the store’s bright fluorescent lights. After pocketing the money from the safe, the robber ordered the Lederers to lie upon the floor; Norma, however, refused to do so and continued to observe the robber while he left the store.

The Lederers quickly called the Evanston police, and Norma gave a detailed description of the robber. She told the police that he had worn blue pants, a blue jacket, a blue knit hat with a golden or orange tassel, and a piece of cloth covering part of his face. While responding to the call, Officer Glanz used a spotlight to view passengers in on-coming cars. Noting that the sole occupant of a Cadillac matched the description radioed to him, Officer Glanz attempted to stop that car. A chase ensued and, after numerous turns, the Cadillac entered an alley blocked by another car. The driver abandoned the Cadillac, which was later found to be registered to defendant. The driver also left behind his hat, a gun, two pieces of white cloth, and some loose money and rolls of change.

Officer Glanz lost sight of the driver, but was able to follow his footprints in the fresh snow. This trail led to the open door of a ground-level apartment. Upon entering the apartment, Officer Glanz found a black male using the telephone and took him into custody. This man was later identified as Early Patterson, the tenant of that apartment and a friend of defendant’s aunt. Other officers arriving at the scene also entered the apartment and found defendant crouched down by a refrigerator. At the time of his arrest, defendant was wearing blue pants with wet cuffs and a blue jacket. In his pockets were bills wrapped in 7-Eleven register tape bearing Harold Lederer’s initials.

Both Early Patterson and defendant were taken to the station house, but Patterson was released after dictating a statement. Defendant remained in custody, and Officer Glanz noted that defendant had a puncture wound in his hand similar to the one suffered by Officer Glanz while climbing a fence in the course of the chase.

Later in the day, Harold and Norma Lederer went to the station house and identified the hat, gun and money recovered by the police. In addition, Norma Lederer was shown an array of six photographs, consisting of 10 different mug shots of five individuals and one Polaroid photo of defendant, all of which were small color prints. The photo of defendant was a somewhat blurry frontal view. Norma Lederer told the police that defendant’s photograph was that of the robber.

At trial, Norma and Harold Lederer identified the defendant as the gunman. Norma again described him, testifying that he had worn a hat pulled down to about one-half inch above his eyebrows and a piece of cloth which hung down loosely from the middle of the bridge of his nose to below his jaw. She testified that she was able to discern the structural features of the robber’s face despite the mask because his face was outlined through the cloth as he moved.

After Officer Glanz testified, the prosecutor sought to call Early Patterson as a court’s witness, claiming that he could not vouch for Patterson’s veracity. Upon objection by defendant, the trial judge ruled that the State could call Patterson as a hostile witness and that the prosecutor would be allowed to impeach Patterson if necessary. After Patterson denied that defendant had told him of robbing the 7-Eleven store, the prosecutor sought to impeach him by introducing part of the written statement which Patterson had signed on the morning of the robbery:

“Q. Did you tell — strike the question. Was this question asked of you, Mr. Patterson, by Detective Haytow, and did you give these answers:
‘Q. Mr. Patterson, will you tell me what you know of this armed robbery?’
‘A. Dennis Bryant came down in the basement. I went down behind him. I asked him what was wrong. He said the police had just taken his car. He said he just robbed a 711,1 think that’s what it was.’ ”

The State again referred to the same portion of this statement while subsequently examining the officer to whom it had been given.

The appellate court found that the in-court identification evidence was improper because the photographic identification technique was both unnecessarily and impermissibly suggestive, and that there was no independent basis to establish reliability. We do not agree that the procedure itself was suggestive. Rather, we agree with the State that a Polaroid photograph does not connote recency. Furthermore, a different format does not automatically render a photo suggestive: it may make it more so or less so. Different need not be equated with suggestive. (See People v. Kubat (1983), 94 Ill. 2d 437.) In addition, there is nothing in the record to indicate that Norma Lederer knew that an arrest had been made at the time of the identification procedure or that the police in any way indicated which of the photos was defendant’s.

More importantly, the evidence shows that Norma Lederer’s out-of-court identification was reliable. This court has held that even identifications made under suggestive conditions are admissible if reliable. (People v. Manion (1977), 67 Ill. 2d 564, 571, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513, citing Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) When assessing reliability, this court has consistently examined the totality of the circumstances. (People v. McTush (1980), 81 Ill. 2d 513; People v. Manion (1977), 67 Ill. 2d 564; People v. Williams (1975), 60 Ill. 2d 1.) The factors considered include “ ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382; see People v. Manion (1977), 67 Ill. 2d 564, 571.) This court has added another factor in determining whether a witness’ identification has an independent origin: “any acquaintance with the suspect prior to the crime.” People v. Blumenshine (1969), 42 Ill. 2d 508, 514.’ ” People v. McTush (1980), 81 Ill. 2d 513, 521.

The record indicates that these factors were adequately satisfied. Norma Lederer testified that she was able to directly observe the gunman for about five minutes at a distance of only a few feet in the brightly lighted store and that the mask failed to completely conceal his features. She retained her composure, and all of her attention remained focused on the robbery and the robber. Significantly, Norma Lederer was able to provide the police with a detailed description and immediately made a positive identification when presented with an array of photographs. Although she was unacquainted with defendant, the identification took place on the same day as the robbery.

Furthermore, as recognized by the Supreme Court, it is important to consider whether there was any pressure on the witness to make a certain identification. (Manson v. Brathwaite (1977), 432 U.S. 98, 116, 53 L. Ed. 2d 140, 155, 97 S. Ct. 2243, 2254.) This factor has also been articulated in some of our appellate court opinions. (See People v. Witted (1979), 79 Ill. App. 3d 156; People v. Hart (1973), 10 Ill. App. 3d 857; People v. Hudson (1972), 7 Ill. App. 3d 333.) There was in this case no such pressure, coercion or suggestion. Because we conclude that Norma Lederer’s out-of-court identification was reliable, it follows that her in-court identification was properly admitted. (People v. Manion (1977), 67 Ill. 2d 564, 572, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513, citing Manson v. Brathwaite (1977), 432 U.S. 98, 110 n.10, 53 L. Ed. 2d 140, 151 n.10, 97 S. Ct. 2243, 2251 n.10.) Moreover, the same considerations which indicate that Norma Lederer’s out-of-court identification was reliable lead us, of course, to conclude that her in-court identification rested upon an independent origin sufficient to establish separate reliability and was thus properly admitted. People v. McTush (1980), 81 Ill. 2d 513; People v. Williams (1975), 60 Ill. 2d 1.

The appellate court also found the photographic identification procedure impermissible because defendant was in custody at the time and the State failed to offer evidence of any extenuating circumstances. We note, however, that defendant failed at trial to object to the identification evidence on this basis. Consequently, that issue was not preserved for review. People v. Pastorino (1982), 91 Ill. 2d 178, 192; People v. Queen (1974), 56 Ill. 2d 560, 564.

The State contends that the introduction of part of Early Patterson’s written statement, if improper, was harmless error. This court has repeatedly disapproved prosecutorial efforts to impart substantive character to prior inconsistent statements under the guise of impeachment. (People v. Bailey (1975), 60 Ill. 2d 37, 43; see also People v. Gant (1974), 58 Ill. 2d 178; People v. Powell (1973), 53 Ill. 2d 465; People v. Collins (1971), 49 Ill. 2d 179.) Moreover, statements made outside the defendant’s presence which relate his confession of guilt or innocence are not competent evidence even for impeachment purposes if likely to prejudice the jury. (People v. McKee (1968), 39 Ill. 2d 265, 271; People v. Tunstall (1959), 17 Ill. 2d 160.) It was, therefore, erroneous to allow the introduction of Patterson’s statement.

Nevertheless, we believe that admitting that evidence constituted harmless error. At the time of his arrest, defendant was hiding from the police and some of the proceeds from the robbery were found in his pockets. In addition, his attire conformed precisely to the description given by Norma Lederer, and he had sustained a puncture wound on his hand similar to that suffered by Officer Glanz during the chase. It is hard to conceive that a stronger showing of guilt could have been made; the jury “ ‘would not have found the State’s case significantly less persuasive had [Patterson’s testimony] been excluded.’ ” (People v. Burbank (1972), 53 Ill. 2d 261, 268-69, cert. denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017, quoting Schneble v. Florida (1972), 405 U.S. 427, 432, 31 L. Ed. 2d 340, 345, 92 S. Ct. 1056, 1060. See also People v. Love (1978), 71 Ill. 2d 74.) In light of this overwhelming evidence of defendant’s guilt, the admission of Patterson’s statement was clearly harmless beyond a reasonable doubt. People v. Gant (1974), 58 Ill. 2d 178, 186-87, citing Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Gill (1973), 54 Ill. 2d 357, 369, cert. denied (1974), 414 U.S. 1144, 39 L. Ed. 2d 100, 94 S. Ct. 897.

Although not addressed by the appellate court, defendant contends that he was denied a fair trial because of certain prosecutorial remarks during closing argument. These remarks touched upon the State’s burden of proof, the credibility of the witnesses, the need for strong administration of the criminal law, and the fact that the State’s evidence was “uncontradicted.” While we have always emphasized that prosecutors may not engage in inflammatory and unfounded closing arguments (see, e.g., People v. Whitlow (1982), 89 Ill. 2d 322), “[e]ach case of this kind must be decided upon its own facts” (People v. Weathers (1975), 62 Ill. 2d 114, 120). We do not agree that the prosecutor’s characterization of the State’s burden as one which is “not unreasonable” and “met each and every day in courts” reduced that burden. Furthermore, this court has consistently held that a prosecutor’s closing argument may denounce the accused, reflect upon witness credibility, and urge the fearless administration of the law if it is based on facts in the record or inferences fairly drawn from those facts. (People v. Anderson (1971), 48 Ill. 2d 488; People v. Durso (1968), 40 Ill. 2d 242, cert. denied (1969), 393 U.S. 1111, 21 L. Ed. 2d 807, 89 S. Ct. 923; People v. Hampton (1962), 24 Ill. 2d 558, cert. denied (1962), 371 U.S. 868, 9 L. Ed. 2d 105, 83 S. Ct. 131; People v. Tanthorey (1949), 404 Ill. 520.) The prosecutor’s remarks in the case before us fell within those legitimate bounds. Finally, we cannot agree that the prosecutor’s characterization of the State’s evidence as “uncontradicted” improperly directed the jury’s attention to defendant’s failure to testify. (See People v. Skorusa (1973), 55 Ill. 2d 577, 584; People v. Mills (1968), 40 Ill. 2d 4, 8; People v. Norman (1963), 28 Ill. 2d 77, 81.) Rather, this remark served only to emphasize the strength of the State’s case; defendant’s contention in this regard appears to be an afterthought based upon an undue emphasis on prosecutorial language taken out of context.

Defendant, raising the issue for the first time, contends that his trial was unfair because the trial judge’s denial of a motion to suppress his prior conviction precluded defendant from taking the stand. Recognizing the applicability of the waiver doctrine, defendant urges us to characterize the ruling as plain error (73 Ill. 2d R. 615); instead, we find defendant’s contention to be without merit. In People v. Montgomery (1971), 47 Ill. 2d 510, this court held that defendants must bear the burden of establishing that they will be unduly prejudiced by the admission of evidence concerning prior convictions. (47 Ill. 2d 510, 518, citing Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936.) The defendant has failed to demonstrate that any potential prejudice would outweigh the probative value of the evidence for impeachment purposes, particularly in view of our recent holding that a failure to testify does not establish that a defendant was prejudiced. (People v. Leonard (1980), 83 Ill. 2d 411.) As in Leonard, we view defendant’s decision not to testify as a matter of trial strategy. (83 Ill. 2d 411, 423.) Consequently, we are unable to find any abuse of discretion by the trial judge in refusing to bar evidence concerning defendant’s prior conviction.

The judgment of the appellate court is accordingly reversed, and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.

JUSTICE CLARK took no part in the consideration or decision of this case.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgment of the appellate court. I agree with the appellate court that the photographic identification employed in this case was impermissibly and unnecessarily suggestive.

The majority states: “More importantly, the evidence shows that Norma Lederer’s out-of-court identification was reliable.” (94 Ill. 2d at 520.) Considering that when she made the identification she had already been shown the clothing taken from defendant, that she was shown a Polaroid photograph, and admittedly the mask worn by the robber to a great extent covered his features, this is, at best, a questionable conclusion.

I do not agree with the majority that the introduction of Patterson’s statement into evidence was harmless error. The appellate court, in its well-reasoned opinion, has clearly demonstrated that the admission of the testimony was highly prejudicial and not harmless. (See 100 Ill. App. 3d 17, 22-26.) It should be further noted, as pointed out by the appellate court, that the State’s Attorney exacerbated the error by making repeated references to Patterson’s statement in closing argument.

I agree that there was overwhelming evidence of defendant’s guilt. He was nevertheless entitled to a fair trial. He did not receive a fair trial, and I would reverse the judgment and remand for that purpose.


source: Caselaw Access Project

author: JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 56221.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JIMMY L. CREEK, Appellant.

      Opinion filed January 24, 1983.

    Rehearing denied April 8,1983.

      Donald E. Groshong, of Groshong, Moorman & Fahrenkamp, Ltd., of East Alton, for appellant.
    Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield, and Donald W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Stephen E. Norris, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Following a jury trial in the circuit court of Madison County, Jimmy L. Creek, the defendant in this procedurally confused case, was convicted of reckless homicide and driving while under the influence of intoxicating liquor. He received sentences of one year’s imprisonment and six months’ imprisonment, respectively, on the two charges. The appellate court dismissed the appeal ultimately taken by defendant on the grounds that it was not timely filed, and we granted his petition for leave to appeal.

On November 19, 1978, defendant received a citation at the scene of a fatal accident for driving while intoxicated and improper lane usage. These charges were dismissed shortly thereafter on the motion of an assistant State’s Attorney because the prosecutor was investigating the possibility of filing a felony charge. An information was then filed on December 19 charging defendant with reckless homicide. Defendant later appeared and pleaded not guilty, and at a January 12, 1979, preliminary hearing the trial court entered the following written order:

“The above entitled cause having again come on for hearing pursuant to setting and notice for preliminary hearing, on motion of assistant state’s attorney Stephanie Robbins, the above entitled cause is hereby dismissed with prejudice.
Defendant’s bond ordered discharged according to law.
It is so ordered.” (Emphasis added.)

The signatures of the prosecutor and defense counsel appear immediately below the word “Approved” on this order.

Thirty-four days later, the Madison County grand jury indicted defendant for reckless homicide, and the charge of driving while intoxicated was also later reinstated. Defendant’s motion to dismiss the reckless-homicide charge on double jeopardy grounds was denied, and he then filed a petition for habeas corpus which was also denied. Defendant was then tried on the consolidated driving-while-intoxicated and reckless-homicide charges while his habeas corpus appeal was in process. Following his conviction on May 9, 1980, defendant filed several post-trial motions urging the trial court to vacate the conviction or reconsider the sentences imposed. While those motions were pending in the trial court, the appellate court apparently was advised of defendant’s convictions and determined on its own motion to review the effect of the earlier dismissal with prejudice. Although initially recognizing that this dismissal involved only the reckless-homicide charge, the opinion of the appellate court concludes by reversing “the judgment of the circuit court of Madison County.” The driving-while-intoxicated and reckless-homicide charges had been tried as a consolidated case, and the appellate court reversal, which did not distinguish between the two charges, seems to have been treated as a reversal of both.

Apparently by sheer coincidence, the appellate court opinion (Creek v. Clark (1980), 91 Ill. App. 3d 429) was filed on the same day, November 26, upon which the Madison County circuit court denied the last of defendant’s post-trial motions. This court subsequently granted leave to appeal and reversed the appellate court (Creek v. Clark (1981), 88 Ill. 2d 54), holding that the latter lacked jurisdiction to decide the case on its merits in light of defendant’s failure to appeal from Ms conviction. Defendant then filed in the trial court a notice of appeal wMch, while filed witMn 30 days of our decision, was filed approximately a year after demal of defendant’s post-trial motions. Noting tMs fact, the appellate court dismissed that appeal as untimely. We subsequently granted defendant’s petition for leave to appeal from that dismissal and, following oral argument, requested both parties to submit additional briefs addressing the merits of the double jeopardy issue so that we could examine that issue as well as the propriety of the dismissal of the appeal.

The State urges that the appellate court properly dismissed defendant’s appeal under our Rule 606 because he failed to file a timely notice of appeal. Under our Rule 606(b), notices of appeal “must be filed with the clerk of the circmt court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” (73 Ill. 2d R. 606(b).) The judgment in tMs case became final on June 6, 1980, when defendant’s sentence was imposed (see In re J.N. (1982), 91 Ill. 2d 122; People v. Allen (1978), 71 Ill. 2d 378; People v. Warship (1974), 59 Ill. 2d 125), and the last of defendant’s post-trial motions was demed on November 26, 1980. Accordingly, under Rule 606(b) the time limit witMn wMch defendant would ordinarily be required to file his notice of appeal extended 30 days beyond that date.

On that same day, however, the appellate court opiMon erroneously reversing defendant’s conviction (Creek v. Clark (1980), 91 Ill. App. 3d 429) was filed. Consequently, defendant had no adverse judgment from wMch he could appeal until tMs court reversed the appellate court’s judgment on October 21, 1981. (Creek v. Clark (1981), 88 Ill. 2d 54.) Defendant promptly filed a notice of appeal following tMs court’s ruling, and we believe that notice must be considered as timely. Although the appellate court’s reversal of defendant’s conviction proved to be erroneous, defendant justifiably relied on that decision. Indeed, he had no alternative. Defendant had a constitutionally granted right to appeal the judgment of the Madison County circuit court within 30 days from November 26, 1980, the date of the denial of his last post-trial motion. (Ill. Const. 1970, art. VI, sec. 6.) It is apparent that defendant would have exercised that right except for the fortuitous filing of the appellate court opinion reversing that judgment. While constitutionally guaranteed rights can be waived, nothing resembling a waiver is to be found here. In fact, dismissing this appeal as untimely when the sole reason for delay lies in judicial error might well violate the due process guarantees of both our own and the Federal constitutions. See U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. I, sec. 2; Ill. Const. 1970, art. VI, sec. 6.

As recognized by both parties, the dispositive issue in this cause is whether the State may dismiss a charge “with prejudice” and subsequently prosecute the same defendant for the same offense, based on the same facts. Ballentine’s Law Dictionary provides the following definition of a dismissal with prejudice:

“An adjudication on the merits of the case, a final disposition of the controversy which bars the right to bring or maintain an action on the same claim or cause of action.” (Ballentine’s Law Dictionary 384 (2d ed. 1948).)

Similar definitions have appeared in numerous judicial opinions recognizing that the phrase “with prejudice” has a well-established meaning within the legal profession, and we agree with the following observations of our own appellate court: “The term ‘with prejudice’ has a well-recognized legal import; it is the converse of the term ‘without prejudice’ and is as conclusive of the rights of the parties as if the suit had been prosecuted to a final prosecution adverse to the complainant.” (Gonzalez v. Gonzalez (1955), 6 Ill. App. 2d 310, 314. See Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621; Bank of America v. Jorjorian (1940), 303 Ill. App. 184. Accord, Lawlor v. National Screen Service Corp. (1955), 349 U.S. 322, 99 L. Ed. 1122, 75 S. Ct. 865; Chalmers v. Hughes (1971), 83 N.M. 314, 491 P.2d 531; Cochise Hotels, Inc. v. Douglas Hotel Operating Co. (1957), 83 Ariz. 40, 316 P.2d 290; Union Indemnity Co. v. Benton County Lumber Co. (1929), 179 Ark. 752, 18 S.W.2d 327; Foundry Systems & Supply, Inc. v. Industry Development Corp. (1971), 124 Ga. App. 589, 185 S.E.2d 94; Mayflower Industries v. Thor Corp. (1952), 20 N.J. Super. 39, 89 A.2d 277; Gambocz v. Yelencsics (3rd Cir. 1972), 468 F.2d 837. See also 27 C.J.S. Dismissal & Nonsuit sec. 73 (1959).) While the phrase is not encountered in connection with criminal proceedings as frequently as it may be in civil matters, the meaning is the same regardless of the context. (See, e.g., People v. Newell (1980), 83 Ill. App. 3d 133; Spriggs v. United States (9th Cir. 1955), 225 F.2d 865.) Consequently, we consider the dismissal with prejudice of the initial information charging defendant with reckless homicide equivalent to a final adjudication on the merits of the case.

In light of our conclusion, defendant’s conviction was improper for several reasons. The fifth amendment to the United States Constitution provides, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb” (U.S. Const., amend. V), and this prohibition applies to State governments as well as the Federal government. (Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260; Benton v. Maryland (1969), 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056.) Our own constitution similarly provides that “[n]o person shall be *** twice put in jeopardy for the same offense.” (Ill. Const. 1970, art. I, sec. 10.) Both of these constitutional guarantees protect defendants from a second prosecution on the same charge following an acquittal. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072; People v. Gray (1977), 69 Ill. 2d 44.) The State directs our attention to People v. Deems (1980), 81 Ill. 2d 384, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378, where this court held that the word “acquittal” carries no talismanic meaning. The farcical situation in Deems, however, bears no resemblance to this case. There the judicial action denominated by the judge as an acquittal bore none of its characteristics other than the label. Here the dismissal with prejudice appears to have been intended to be tantamount to an acquittal. The prosecutor’s purposeful inclusion of the phrase “with prejudice” in her motion to dismiss, coupled with the signed approval of both parties, indicates to us an intention to terminate the proceedings in defendant’s favor in such a way as to bar further action. Defendant’s subsequent conviction is accordingly constitutionally infirm.

The prosecutor’s decision to seek an indictment for reckless homicide after dismissing with prejudice the information charging the same offense also contravenes Illinois statutory law. Section 3 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 3 — 4(a)) provides:

“(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; ***.”

In light of our conclusion that a dismissal with prejudice is equivalent to an acquittal, we consider the prohibition against subsequent prosecution in section 3 — 4 applicable to the indictment here, and his conviction was thus barred.

There is a final basis for challenge. The judicially created rule of res judicata provides that “a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.” (People v. Kidd (1947), 398 Ill. 405, 408. See Hughey v. Industrial Com. (1979), 76 Ill. 2d 577. Cf. Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189; La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, cert. denied (1976), 425 U.S. 936, 48 L. Ed. 2d 177, 96 S. Ct. 1668.) As earlier noted, the dismissal with prejudice of the initial reckless-homicide information had the same effect as a final adjudication on the merits, and is res judicata as to this indictment.

As we earlier pointed out, only the information for reckless homicide was dismissed with prejudice. There existed no similar bar to the prosecution of the charge of driving while intoxicated, a fact not discussed by the appellate court. Since the judgment on that charge is not subject to the same infirmity, it remains unaffected and the parties are entitled to its review on its merits. The appellate court’s order dismissing defendant’s appeal is accordingly reversed. The reckless-homicide and driving-while-intoxicated cases are severed. The reckless-homicide case is remanded to the circuit court of Madison County with directions to vacate defendant’s conviction and sentence and dismiss the indictment. The drunken-driving case is remanded to the appellate court with directions to afford defendant a review on the merits.

Reversed and remanded, with directions.


author: CHIEF JUSTICE RYAN JUSTICE SIMON,

text:
    (No. 55618.
    STOCKER HINGE MANUFACTURING COMPANY, Appellant, v. DARNEL INDUSTRIES, INC., et al., Appellees.

      Opinion filed January 24, 1983.

    Rehearing denied April 8, 1983.

      SIMON, J., dissenting.
    Gordon B. Nash, Jr., of Chicago (Gardner, Carton & Douglas, of counsel), for appellant.
    Ronald R. Rassin, of Chicago (Holleb & Coff, Ltd., of counsel), for appellees Darnel Industries, Inc. and Samuel A. Hoffman.
    Milton K. Joseph, of Rosemont, for appellee S&S Hinge Co.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Plaintiff, Stocker Hinge Manufacturing Company, appeals from an award of damages in the amount of $44,815.75 entered in the circuit court of Cook County in favor of defendants, Darnel Industries, Inc., Samuel A. Hoffman, and S&S Hinge Company, resulting from the issuance of a temporary restraining order (TRO) under the Injunction Act (Ill. Rev. Stat. 1977, ch. 69, pars. 9, 12). The appellate court affirmed the award of damages (99 Ill. App. 3d 340), and we granted plaintiff’s petition for leave to appeal (73 Ill. 2d R 315).

This case presents one question: whether damages may be awarded when a temporary restraining order is terminated as a result of the denial of a preliminary injunction where the trial court has previously refused to dissolve the TRO and defendants have failed to appeal that decision. Although the narrow issue involved in this case renders it unnecessary to discuss the substantive issues in detail, a basic explanation of the controversy is required.

This is a controversy concerning alleged “trade secrets.” Plaintiff, Stocker Hinge Manufacturing Company, filed a verified complaint on September 14, 1977, seeking to enjoin defendants Darnel and Hoffman from revealing plaintiff’s trade secrets to S&S. Plaintiff manufactures and sells hinges used in all types of industry. Defendant Darnel Industries manufactures and sells tools and dies, including continuous, butt and special hinge tools and dies. From 1966 to 1974, defendant Samuel A. Hoffman was employed by Stocker Hinge as its chief engineer; afterward, Hoffman became president of Darnel Industries, Inc. Defendant S&S Hinge Company, a competitor of plaintiff, also manufactures and sells hinges for all types of industry.

On September 19, 1977, plaintiff filed a motion for a temporary restraining order and for a preliminary injunction, pursuant to sections 3 and 3 — 1 of the Injunction Act (Ill. Rev. Stat. 1977, ch. 69, pars. 3, 3 — 1), initially seeking a TRO to maintain the status quo by restraining defendants from “selling, disclosing, or utilizing any of Stocker’s technology and manufacturing processes for continuous, butt or special hinges until a full hearing can be held on Stocker’s motion for a preliminary injunction.” The motion alleged that defendants were “about to sell or disclose or ha[d] sold or disclosed the unique technology and manufacturing processes for continuous, butt and special hinges to a competitor of Stocker’s, S&S Hinge.”

On that same day, the circuit court entered the following order:

“This matter having come to be heard on Friday, September 16, 1977 on Plaintiff’s Motion for a Temporary Restraining Order and for a Preliminary Injunction, and the Court having examined the Verified Complaint for Injunction and heard partial testimony in support of the motion, the parties have agreed as follows:
* * *
3. That Hoffman and Darnel will not sell, disclose or deliver any technology and manufacturing process for continuous, butt and special hinges developed by Stocker and Hoffman and utilized by Stocker until further order of this Court.
* * *
In view of the foregoing agreement of the parties,
IT IS THEREFORE ORDERED:
That the status quo shall be maintained consistent with the foregoing agreement of the parties nunc pro tunc as of September 16, 1977 for a period of ten (10) business days, or to and including September 29, 1977.” (Handwritten addition to typed order italicized.)

Afterward, the parties strongly disagreed as to whether the above order was in fact an “agreed order,” as plaintiff maintains, or an “ex parte order,” as defendants argue. The record reveals that there was a substitution of counsel for defendants during this period and that counsel for plaintiff attempted, but was unable, to contact defendants’ counsel for approval of the order prior to its entry.

After entry of the temporary restraining order, defendants filed a motion to vacate the order on September 27, 1977, and orally objected to the continuance of the order at the hearing on October 7, 1977. The court denied the defendant’s motion and entered an order on September 27, 1977, finding as follows:

“4. Tha,t the order entered into by this Court on Sept. 19, 1977 be and is hereby continued until Oct. 7, 1977 upon Plaintiff filing a bond in the amount of $5,000.00.
6. That the Court finds no just cause to delay enforcement or appeal of paragraph 4 of this Order.” (Emphasis added.)

The temporary restraining order entered September 19, 1977, was thereafter continued periodically while the court heard evidence on plaintiff’s motion for preliminary injunction, and the amount of the bond was increased to $25,000 on October 14,1977.

At the conclusion of the evidentiary hearings, which extended from September 16, 1977, to November 30, 1977, the court entered an order on December 2, 1977, as follows:

“IT IS HEREBY ORDERED:
1. That the Temporary Restraining Order heretofore entered against Defendants, Darnel Industries, Inc., Samuel A. Hoffman, and S&S Hinge Company, at the behest of Plaintiff, Stocker Hinge Mfg. Co. be and the same is hereby dissolved.
That the Motion of the Plaintiff for a Preliminary Injunction be and the same is hereby denied.”

Plaintiff then took an interlocutory appeal from the order of the circuit court refusing to grant a preliminary injunction. The appellate court affirmed, finding that plaintiff had “failed to establish the distinctive and secret nature of its manufacturing processes by a preponderance of the evidence.” 61 Ill. App. 3d 636, 643.

Thereafter, on January 10, 1978, defendants Darnel and Hoffman filed a motion for “damages caused by wrongful entry of temporary restraining order and for recovery on bond,” pursuant to sections 9 and 12 of the Injunction Act (Ill. Rev. Stat. 1977, ch. 69, pars. 9, 12). Defendant S&S Hinge also filed a similar motion on that date. Due to nu- . merous continuances and delay, it was not until May 30, 1980, that the court entered an order awarding defendants Darnel and Hoffman damages in the amount of $29,441.75 and defendant S&S Hinge damages in the amount of $15,372.75.

As indicated earlier, plaintiff appealed, and defendants cross-appealed seeking to increase the awards. The appellate court affirmed. (99 Ill. App. 3d 340.) In its affirmation of the damage award, the appellate court determined that the ultimate dissolution of the temporary restraining order on December 2, 1977, at the same time the trial court denied the preliminary injunction, constituted an adjudication that the TRO was wrongfully issued. (99 Ill. App. 3d 340.) We disagree.

In 1967, the term “temporary restraining order” was written into the Injunction Act by an amendment which added section 3 — 1. Section 9 of the Act was also amended at that time to provide for bond in connection with a TRO. (Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 181.) Prior to the 1967 amendments to the Injunction Act, the terms “restraining order,” “preliminary injunction,” “temporary injunction,” “interlocutory injunction,” and “interlocutory order” were used interchangeably. (55 Ill. 2d 177, 179.) This still occurs to some extent today. The result is that the terminology used is often not precise.

The granting or denial of a TRO is within the sound discretion of the trial court. (Board of Education v. Springfield Education Association (1977), 47 Ill. App. 3d 193, 196; Mars, Inc. v. Curtiss Candy Co. (1972), 8 Ill. App. 3d 338.) Its purpose is to allow the trial court to preserve the status quo until it can hold a hearing to determine whether it should grant a preliminary injunction. (Bismark Hotel Co. v. Sutherland (1980), 92 Ill. App. 3d 167, 175; Bullard v. Bullard (1978), 66 Ill. App. 3d 132, 135; Kirchenberg v. Chicago Transit Authority (1973), 13 Ill. App. 3d 184, 186.) A TRO should not be refused or dissolved merely because the court may not be absolutely certain the plaintiff has the right he claims. (O’Brien v. Matual (1957), 14 Ill. App. 2d 173, 187.) The plaintiff is not required to make out a case which would entitle him to judgment at trial; rather, he only needs to show that he raises a “fair question” about the existence of his right and that the court should preserve the status quo until the cause can be decided on the merits. Boner v. Drazek (1973), 55 Ill. 2d 279, 285-86; O’Brien v. Matual (1957), 14 Ill. App. 2d 173, 187-88.

In the instant case, plaintiffs argue that it is necessary for the temporary restraining order to have been wrongfully issued, and that mere dissolution is insufficient, to sustain an award of damages under section 12 (Ill. Rev. Stat. 1977, ch. 69, par. 12). In return, defendants maintain that, for damages to be awarded, it is necessary only that the TRO be dissolved prior to a final determination on the merits. In the alternative, defendants argue that the mere dissolution of a TRO prior to a final determination on the merits itself conclusively establishes that the TRO was wrongfully entered. Other issues were also raised, such as the nature of the damages which may be awarded under section 12, but we find it unnecessary to address those additional issues because we hold that defendants failed to meet the requirements for the award of any damages under section 12.

The relevant paragraphs of the statute with respect to the award of damages are sections 9 and 12 (Ill. Rev. Stat. 1977, ch. 69, pars. 9,12). Section 9 provides, in part:

“The court in its discretion, may before issuing a restraining order or a preliminary injunction, require the applicant to give bond in such sum, upon such condition and with such security as may be deemed proper by the court or judge, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 69, par. 9.)

And section 12 provides, in part:

“In all cases where an injunction is dissolved by any court of this state, the court, after dissolving such injunction, and before finally disposing of the suit *** shall hear evidence and assess such damages ***.” Ill. Rev. Stat. 1977, ch. 69, par. 12.

It is well established that section 12, which provides a summary mode for assessing damages, is to be strictly construed and applied. (Schien v. City of Virden (1955), 5 Ill. 2d 494, 504; Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 1149.) It is also well established that damages may be awarded under section 12 only in connection with preliminary injunctions or temporary restraining orders. (Schien v. City of Virden (1955), 5 Ill. 2d 494, 503.) Further, such preliminary injunctions or TROs must be dissolved prior to a determination of the case on the merits in order to fall within the purview of section 12. Meyer v. Marshall (1976), 62 Ill. 2d 435, 439.

Section 9 of the statute, authorizing the court to require bond as a condition of allowing a TRO or preliminary injunction, expressly refers to the award of damages to a party who is found to have been “wrongfully enjoined or. restrained.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 69, par. 9.) Section 12, however, does not make a similar distinction. (Ill. Rev. Stat. 1977, ch. 69, par. 12.) Since section 12 does not require that the preliminary injunction or TRO be wrongful, this forms the basis of defendants’ position that mere dissolution is all that is required. However, defendants’ reliance on the express language of the statute alone effectively ignores the prior decisions of this court.

Despite defendants’ arguments to the contrary, it is clear that the opinions of this court subsequent to the 1967 amendments have consistently, and properly, interpreted the section 12 damages award to require a prior adjudication that the TRO or preliminary injunction had, in fact, been wrongfully entered. (Meyer v. Marshall (1976), 62 Ill. 2d 435, 439; Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 184.) In House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 49, this court clearly stated:

“We adhere to the established view that damages under section 12 are collectible only for wrongful issuance of temporary injunctions, when properly sought.” (Emphasis added.)

Additionally, it is clear from reading the statute that sections 9 and 12 are intended to be read together, with section 9 granting to the court the authority to require a bond for damages and section 12 prescribing the proper procedure to be followed in applying for a damage award. Ill. Rev. Stat. 1977, ch. 69, pars. 9, 12.

As indicated earlier, after the issuance of the TRO, defendants moved to vacate the order in writing and also orally objected to its continuation. The court denied defendants’ motion and continued the TRO over defendants’ objection. At the same time, in its order of September 27, 1977, the court found that there was no just reason to delay appeal.

It is well established that the order of the trial court refusing to dissolve a temporary restraining order is immediately appealable. (Bohn v. Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177.) In Bohn Aluminum this court reasoned that “[t]o hold that the refusal to dissolve a temporary restraining order is not appealable under Rule 307 would *** preclude the defendant from applying for an award of damages.” 55 Ill. 2d 177, 185.

An order denying defendants' motion to dissolve a TRO, when not appealed from, becomes a final order that the TRO was properly granted. (Stein v. Green (1955), 6 Ill. 2d 234, 244; Debowski v. Shred Pax Corp. (1977), 45 Ill. App. 3d 891, 897-98.) It becomes the law of the case. Schien v. City of Virden (1955), 5 Ill. 2d 494, 504.

In the instant case, defendants did not appeal the trial court’s order entered September 27, 1977, refusing to dissolve the temporary restraining order. After the time for appeal had expired, the trial court’s decision became the law of the case. Because an adjudication that the temporary restraining order was wrongfully issued is an essential element in an award of damages under section 12 (House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 49), no damages may be awarded to defendants on the facts of this case.

Additionally, defendants have failed to recognize the difference between a temporary restraining order which is dissolved by the court because it was improvidently granted and one which simply expires because it has served its function. (Schuler v. Wolf (1939), 372 Ill. 386, 389; Nestor Johnson Manufacturing Co. v. Goldblatt (1939), 371 Ill. 570, 573-74.) When the temporary restraining order is not dissolved before a hearing on the merits, it becomes merged with the preliminary injunction, if the plaintiff prevails, or it becomes functus officio. (Schien v. City of Virden (1955), 5 Ill. 2d 494, 504.) Thus, there has been no legal determination that the TRO was wrongfully issued. House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 50.

Defendants mischaracterize the trial court’s order of December 2, 1977, refusing to grant the motion for a preliminary injunction and “dissolving” the TRO. The purpose of a TRO is to maintain the status quo while the court is hearing evidence to determine whether a preliminary injunction should issue. In the instant case, once the trial court had heard the evidence and reached a determination that a preliminary injunction should not issue, the TRO, in effect, expired by its own terms because it no longer served any function. Although in its order of December 2, 1977, the trial court “dissolved” the TRO, it would not have been necessary to do so. The temporary restraining order, having served its purpose, simply expired. It was not dissolved but rather became functus officio.

Thus, the “dissolution” of the TRO at the conclusion of the hearing on the preliminary injunction did not operate as a determination that the TRO had been wrongfully entered. The fact that the court ultimately found that plaintiff was not entitled to a preliminary injunction does not necessarily mean that the TRO was wrongfully issued. Here, for instance, the agreed nature of the original order may have precluded the trial court from determining that it has been wrongfully issued. In any event, the court denied the motion to dissolve. That order was not appealed, and there has never been an adjudication that the TRO was wrongfully issued.

Accordingly, the order of the circuit court awarding damages and the judgment of the appellate court affirming that award are reversed.

Judgments reversed.

JUSTICE SIMON,

dissenting:

The temporary restraining order (TRO) entered by the trial court precluded the defendants, Darnell Industries, Inc., and S&S Hinge Company, from transacting a profitable business arrangement for 21/2 months. As a direct result, both companies suffered monetary loss. The majority holds that the defendants may not recover damages under section 12 of the Injunction Act (Ill. Rev. Stat. 1977, ch. 69, par. 12) notwithstanding the trial court’s ultimate holding that the plaintiff, Stocker Hinge Manufacturing Company had no legal right to enjoin the transaction. The majority rests its decision upon an archaic procedural technicality. The result is bad policy which, although perhaps required by past decisions of this court, is not required by the language of the Injunction Act.

In reaching its decision that damages are not recoverable the majority relies on House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 50, Schien v. City of Virden (1955), 5 Ill. 2d 494, 504, Nestor Johnson Manufacturing Co. v. Goldblatt (1939), 371 Ill. 570, 573-74, and Schuler v. Wolf (1939), 372 Ill. 386, 389. These cases establish that once a preliminary injunction has been superseded by the court’s ruling on a permanent injunction it becomes functus officio and a contemporaneous or subsequent dissolution of the injunction cannot establish that the injunction was wrongfully entered in order for the trial court to award damages under section 12. The majority applies the same principle in this case where a TRO was dissolved at the same time that the court denied the plaintiff’s motion for a preliminary injunction.

These cases arguably establish the principle for which they are cited by the majority. Nevertheless, I would not apply that principle in this case. I believe that these cases are erroneous and that they represent bad policy; this court should overrule them or limit them to their facts.

In particular, the cases relied upon by the majority misapply the functus officio doctrine. “ ‘Functus officio’ is a robust, sonorous Latin phrase without precisional legal connotation” (Derry Township School District Appeal (1951), 18 Pa. Super. 415, 417, 79 A.2d 127, 129), and the incantation of that doctrine by the majority obscures the serious issue of policy involved in this case. In this context functus officio simply means that once the trial court denied the preliminary injunction the TRO lost its motive power and would have been dissolved, by operation of law, even if the trial court had not specifically dissolved it in the order of December 2, 1977. Functus officio, however, does not mean that in denying the preliminary injunction the trial court could not also determine that the TRO was “wrongfully” entered. As an official act the TRO is dead after the court decides the merits of the motion for a preliminary injunction, but the court’s treatment of the merits may establish that the plaintiff had no legal right to enjoin the defendants’ conduct.

The majority refuses to accept this observation because it interprets “wrongfulness” required under section 12 as referring to a court’s mistake in applying the proper legal standard in granting a TRO. Thus, the majority opinion contains an extended discussion of the proper standard for a trial court to apply in deciding whether to grant a TRO. After the preliminary relief has become functus officio, any mistake that the court made in applying this standard would not, in the majority’s view, be remediable by an award of damages to the defendants.

This standard, however, is not relevant in determining whether a defendant was “wrongfully” enjoined in a manner that entitles him to damages under section 12. Section 9 of the Injunction Act (Ill. Rev. Stat. 1977, ch. 69, par. 9), which contains the “wrongfulness” requirement, states that damages are to be awarded when the defendant has been “wrongfully enjoined.” I believe that this language only requires the trial court to determine that the plaintiff had no legal right to an injunction. Thus, “wrongfulness” refers to the legal relationship between the plaintiff and the defendant and not to that between the court and the defendant. When it ultimately is determined that the plaintiff was not entitled to any preliminary relief, the trial court’s proper application of the TRO standard should not shield the plaintiff from liability for the damages that his act in applying for the TRO has caused the defendant to suffer.

In denying the preliminary injunction in this case the trial court ruled, and the appellate court affirmed, that the plaintiff had not established the possession of a trade secret that was entitled to equitable protection. (See Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App. 3d 636, 643.) Because the TRO improperly prevented the defendants from using several manufacturing processes during the pendency of the suit, I would require that the plaintiff recompense them for their damages.

The majority’s decision will only result in a subtle and undesirable change in the sequence of proceedings involving preliminary relief. Hereafter defendants will have to completely exhaust hearings and appeals on the motion to dissolve the TRO. If unsuccessful on that motion, defendants will then go forward in defending against plaintiff’s motion for a preliminary injunction. In order to preserve their right to damages, defendants in the future will nearly always appeal a trial court’s denial of a TRO dissolution motion. The majority’s decision thus encourages piecemeal appeals and forces the appellate court to make a final determination concerning the defendant’s right to damages at a point in the litigation when the record often is only incompletely developed.

In the instant case, for example, “all parties recognized the obvious fact that the continuation of the TRO depended upon the identical legal and factual issues as governed the possible entry of a preliminary injunction.” (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1981), 99 Ill. App. 3d 340, 342.) It was quite logical and consistent with conservation of judicial time and resources for the trial court to consolidate hearings on the two motions. The majority erroneously makes the trial court’s practical and commendable decision to consolidate the two motions the determinative factor denying the defendant’s recovery of damages.

A TRO is an extraordinary legal instrument. In some cases the trial court may grant it ex parte, and in such cases the court must rely almost entirely upon the plaintiff’s representations concerning his legal rights. A TRO magically freezes the relationship between the plaintiff and the defendant, but it only does so at a risk of considerable injury to the defendant. I believe that a party who chooses to seek this extraordinary instrument of potential destruction should pay for any damages that he inflicts upon his adversary if it is later determined that he has no legal right to an injunction. Because the majority refuses to reexamine this court’s erroneous construction of section 12, damages are not always available under such circumstances, and I would encourage the legislature to correct this injustice.