author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois ex rel. Fernando Ceja, Plaintiff-Appellee and Cross-Appellant, v. Orlando W. Wilson, Superintendent of Police of the City of Chicago, William E. Cahill, Reginald DuBois, and Quentin J. Goodwin, Members of and Constituting the Civil Service Commission of the City of Chicago, Otto H. Loser, Comptroller of the City of Chicago, and William G. Milota, Treasurer of the City of Chicago, Defendants-Appellants and Cross-Appellees.
    Gen. Nos. 53,199, 53,264. (Consolidated.)
    First District, Fourth Division.
    October 21, 1970.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellants.

      Richard F. McPartlin, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants appeal from the issuance of a writ of mandamus which commanded them to take all steps necessary to withdraw and cancel the resignation of plaintiff from his position as a probationary patrolman in the Chicago Police Department and to reinstate plaintiff as a patrolman with back pay.

Plaintiff cross-appeals from that portion of the order which assessed no costs against the defendants.

On May 31, 1966, after passing the civil service examination for patrolman, plaintiff was appointed a patrolman for a six-month probationary period pursuant to section 5 of Rule IV of the Rules of the Civil Service Commission, 1967, which provides:

Probation. Original appointment shall be on probation for a period of six months. In no case shall a probationer be discharged until after the appointing officer has received from the Commission a notice in writing that the Commission has approved such discharge. Time served on probation, whether continuous or not, shall be credited upon the period of probation.

He was assigned to the Chicago Police Training School. During the period in which plaintiff attended the school, Robert E. McCann, Director of the Police Training School, and several school instructors noticed that plaintiff had a tic. Director McCann testified at trial that the tic was manifested by “a constant moving of the head, eyes closed, shoulders moving; I think the closest kind of oral description I could give would be a punch-drunk boxer.” He also added that the tic was more than a twitch, it was a severe jerk with a face motion.

At the request of Director McCann, Dr. James Carroll, Chief Surgeon of the Police Department, who was in charge of the police medical department, and Dr. Avon Mendelson, a psychologist for the Police Department, observed the plaintiff. As a result of the initial eight-week test, Dr. Mendelson noticed that there was an unusual amount of impulsivity and aggressiveness on the part of plaintiff, in addition to an obvious tic, body contortions and grunting sounds. Dr. Carroll and Dr. Mendel-son reviewed these tests together with plaintiff’s history and background. They decided that there was an excessive amount of impulsivity and lack of emotional control on the part of the plaintiff.

The plaintiff was then referred to the police medical section, which referred him to Dr. Clifton Rhead of the Police Psychiatric Advisory Board. On August 30, 1966 (several days before plaintiff’s graduation from the training school but three months prior to the expiration of the probationary period), Director McCann received a report from Dr. Carroll which related the findings of Dr. Rhead that plaintiff had a psychogenic tic with poor impulse control. Dr. Rhead recommended:

It is believed that the possibility is strong that this man would act-out his rage if the provocation were strong enough. Since the likelihood of such provocation is greater in his chosen field (police work) it is recommended that he be dropped from the training program at this time.

Upon receipt of this report, Director McCann immediately sent for the plaintiff. The director explained to plaintiff that based on this report and on observations made in the classroom, he would have to recommend to the Superintendent of Police that plaintiff be discharged from the police force. The director went on to explain that he was sympathetic toward plaintiff and that since the discharge was not predicated on a disciplinary situation, it was only fair to give plaintiff the option of resigning, which he did. Director McCann testified at trial that he thought that plaintiff resigned because of the obvious implications that could have followed from being fired from the Police Department.

At the time the plaintiff was directed to go to Director McCann’s office, his brother, Salvatore Ceja, a Chicago policeman, was curious as to what was happening, so he went over to the director’s office. When he arrived, the plaintiff was already in conference with the director.

When the plaintiff emerged from Director McCann’s office and saw his brother, plaintiff asked the director if his brother could speak to him. Director McCann invited both the plaintiff and his brother into his office. The testimony at trial of both the plaintiff and his brother agreed with that of Director McCann to the effect that the director read and explained the medical report to them; that the medical report indicated that under certain stress conditions the plaintiff might overreact and injure or kill someone; and that plaintiff had signed a letter of resignation.

At trial, Director McCann also testified that he made no threats to force plaintiff to sign the letter of resignation but rather, was attempting to be helpful, that he spoke to the plaintiff as a father would to a son. The plaintiff’s brother supported the director’s testimony. He testified that he did not hear the director say anything that would be considered a threat if plaintiff did not resign, and that he thought it was true that for job preference purposes a resignation was better than being discharged.

The plaintiff testified that when his brother asked what the effect would be if other psychiatrists repudiated Dr. Rhead’s report, the director said that he could not take the plaintiff back; that he was simply carrying out his duty as director; and that it was now out of his hands.

At trial, plaintiff introduced by stipulation medical testimony which consisted of a copy of a psychiatric examination requested by plaintiff, a report of a clinical psychologist, and the testimony of a psychiatrist who examined plaintiff at the request of plaintiff’s attorney. Each man who examined the plaintiff noticed the tic and commented about it. However, they found that the plaintiff did not demonstrate any intention of utilizing authority in a destructive manner and that based on plaintiff’s strong feelings of desire to become a police officer, he should be given the opportunity to become one.

Father Francis Maloney also testified for the plaintiff. He testified that he knew the plaintiff very well; that plaintiff had a temper but it was not abnormal; that plaintiff had a good reputation as a peaceful, law-abiding citizen, and for honesty and integrity; that plaintiff got along well with other people; and that he never observed any signs of overt aggressive brutality or violence on the part of the plaintiff.

The court found that it was an abuse of discretion by defendants to refuse plaintiff’s request to withdraw his resignation and ordered the issuance of the writ of mandamus.

Opinion

Defendants contend that the court erred in issuing the writ of mandamus (1) since there was no proof that plaintiff’s resignation was forced or involuntary and (2) because it was not an abuse of discretion by defendants to refuse to permit the withdrawal of plaintiff’s resignation.

Defendants argue that plaintiff’s resignation was free and voluntary. Plaintiff, however, claims that his resignation was forced and involuntary and that Director Mc-Cann’s offered choice of either resigning or being discharged was really no choice at all. In entering his findings of fact, the trial judge stated:

First of all, I will say this as a finding of fact, I cannot conclude that but Director McCann has the highest motives. After all, it is his responsibility to the finished product, and if he has evidence before him that leads him to conclude that the finished product is not what he thinks it should be, then I think he has a right to exercise his power, and he had evidence before him where he had every right in the world to conclude that this particular trainee would not be a good policeman. Now the question is whether or not the question has been raised whether or not this particular resignation was free and voluntary. Whatever that man here — I’m not really sure —the fact is he is an adult man.. The Director mentioned his option to him as a close friend, “Look, we have this problem here. I think it will be better for you to resign rather than be fired.” This happens every day; it happens not only on the Police Department, it happens in other positions.

We, too, conclude that under the evidence presented plaintiff’s resignation was free and voluntary.

The trial judge held, nevertheless, that the Superintendent abused his discretion in not permitting plaintiff to withdraw his resignation. Defendants contend, however, that the evidence adduced by plaintiff failed to show either a duty imposed on the Superintendent of Police to accept plaintiff’s withdrawal of his resignation, or an abuse of discretion by any defendant or any member of the Police Department which would necessitate the issuance of the writ of mandamus. A petition for mandamus is an extraordinary remedy, and one seeking the writ must show a clear right to it. Daniels v. Cavner, 404 Ill 372, 88 NE2d 823; Wilson v. Board of Education of School Dist. No. 126, 394 Ill 197, 68 NE2d 257; and Friedman v. City of Chicago, 374 Ill 545, 30 NE2d 36. In People ex rel. Pignatelli v. Ward, 404 Ill 240, 243, 88 NE2d 461 the court stated:

Mandamus is an extraordinary remedy, and the petitioner must adduce proof in support sufficient to show a clear right to the writ. (People ex rel. Dunderdale v. City of Chicago, 327 Ill 62.) . . . This court will not use a writ of mandamus to compel a party to perform an act unless it is affirmatively made to appear that it is his clear duty to do so; the petitioner must establish every material fact necessary to show the plain duty of the respondent before courts will interfere. (Bengson v. City of Kewanee, 380 Ill 244.) No intendments will be indulged in to support the issuance of the writ.

In the instant case, the plaintiff failed to introduce proof in support of his petition sufficient to show a clear right to the writ. Furthermore, no procedure or authorization has been advanced by plaintiff which imposes a duty on the Superintendent to accept a withdrawal of a resignation. Rather, plaintiff relies on section 2 of Rule IX of the Rules of the Civil Service Commission to show that his resignation should have been withdrawn or cancelled. Section 2 provides:

Resignation. A copy of the resignation of an officer or employee from the classified service shall be filed with the Commission by the head of the department receiving and accepting same. The Commission may permit the withdrawal of a resignation and its cancellation upon application at any time within thirty days after the filing of same, provided, the head of the department concerned approves of such withdrawal and cancellation. (Emphasis ours.)

However, in the instant case, even assuming that plaintiff was in the classified service as a patrolman, the withdrawal of his resignation failed to meet the requirements of section 2, since the Superintendent as head of the department had not approved the withdrawal of the resignation. Although the court found it was an abuse of discretion to refuse plaintiff’s request to withdraw his resignation, we find that there was no question of the use of discretion since plaintiff has shown no right to an acceptance of his resignation or that there was a duty on the Superintendent to accept it. Therefore, there was no basis for a writ of mandamus.

Plaintiff further argues that “a probationer may not be discharged unless the head of the department sets forth in writing his reason therefor, and secures the consent of the Civil Service Commission.” Plaintiff cites Ill Rev Stats, c 24, § 10-1-14, 1967, in support of his argument. Section 10-1-14 provides in part:

At or before the expiration of the period of probation, the head of the department or office in which a candidate is employed may, by and with the consent of the commission, discharge him upon assigning in writing his reason therefor to the commission.

In the instant case, however, the plaintiff voluntarily resigned his position as a probationary patrolman. The plaintiff was never discharged. Therefore, the discharge portion of section 10-1-14 is not applicable and plaintiff’s reliance on it is misplaced.

The order of the trial court issuing the writ of mandamus commanding the defendants to cancel and withdraw plaintiff’s resignation and to reinstate plaintiff as a patrolman with back pay is reversed. Based on this holding, it is unnecessary to discuss plaintiff’s cross-appeal from that part of the order which assessed no costs against the defendants.

Reversed.

STAMOS, P. J. and ENGLISH, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    Angeline Gleneke, Administrator of the Estate of John Tynus, Deceased, Plaintiff-Appellee, v. Henry Lesny and Antoinette Lesny, Defendants-Appellants.
    Gen. No. 53,242.
    First District, First Division.
    October 30, 1970.
    Rehearing denied November 23, 1970.

      Edelstein and Lewis, of Chicago (Sherman L. Lewis, of counsel), for appellants.
    S. J. Krzeminski, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Plaintiff, Angeline Gleneke, administrator of the estate of John Tynus, brought an action to confess judgment on a promissory note jointly executed by the defendants Antoinette Lesny and her son, Henry Lesny, payable to the intestate decedent, John Tynus. After the judgment was opened up by affidavit, the cause proceeded to trial and the judgment was confirmed. Defendants appeal on the ground that the trial judge ruled incorrectly in barring one of the defendants from testifying in his own behalf by reason of the provisions of the Dead Man’s Statute, Ill Rev Stats 1967, c 51, § 2. The sole issue presented for review is whether the plaintiff administrator waived her right to object under the Dead Man’s Statute to the incompetency of defendants at trial by her failure to object to the incompetency of the defendants at the time of the presentation by the defendants of their original and amended affidavits in support of their motion to open up the judgment by confession entered against them.

Plaintiff-administrator, Angeline Gleneke, confessed judgment on a promissory note on October 19, 1966, for the sum of $4,726.12, which included principal, interest, and attorney’s fee. On December 7, 1966, defendants, the sister and nephew of the deceased, John Tynus, filed an affidavit pursuant to Ill Rev Stats 1967, c 110A, § 276, in support of their motion to open the judgment entered by confession. That affidavit states that they have a good and meritorious defense to plaintiff’s action “in that the obligation sued on was (orally) rescinded by the mutual assent of the parties thereto.” Their amended affidavit, filed January 30, 1967, alleges that “in reliance on said rescission Henry Lesny and Antionette Lesny provided John Tynus without further charge, room, board, linens, laundry service, and telephone service from September 1958, until the date of his death in May 1964.” Neither affidavit alleges that affiants, if sworn as witnesses, could testify competently at trial. Plaintiff filed no counteraffidavits and made no motion to strike defendants’ affidavits. Defendants contend that the failure of plaintiff to object to defendants’ affidavits is a waiver of the application of the Dead Man’s Statute to defendants as witnesses at trial.

The Dead Man’s Statute renders a party or interested person incompetent to testify “of his own motion or in his own behalf” against a protected party “unless called as a witness” by the protected party. (Ill Rev Stats 1967, c 51, § 2.) Defendants, parties to the suit, contend that the plaintiff’s failure to object to their incompetency at the time of the presentation of their affidavits is “calling” them as witnesses within the statute and hence involves waiver. While this court has not decided this specific question, we have held that taking the deposition of an incompetent party is not “calling” him within the statute and hence involves no waiver. Pink v. Dempsey, 350 Ill App 405, 113 NE2d 334 (1953).

Ill Rev Stats 1967, c 110A, § 276, prescribes the procedure for opening a judgment by confession:

“A motion to open a judgment by confession shall be supported by affidavit in the manner provided by rule 191 for summary judgment, and shall be accompanied by a verified answer which defendant proposes to file. If the motion and affidavit disclose a prima facie defense on the merits to the whole or a part of the plaintiff’s demand, the court shall set the motion for hearing. The plaintiff may file counteraffidavits, if, at the hearing upon the motion, it appears that the defendant has a defense on the merits to the whole or a part of the plaintiff’s demand and that he has been diligent in presenting his motion to open the judgment the court shall sustain the motion either as to the whole of the judgment or as to any part thereof as to which a good defense has been shown, and the case shall thereafter proceed to trial upon the complaint, answer, and any further pleadings which are required or permitted. . . .”

Pursuant to this statute, a court is to determine only whether the motion to open a judgment and the affidavits filed in support thereof disclose a prima facie defense. Murray v. Korshak, 52 Ill App2d 119, 201 NE2d 737 (1965). The court is not authorized to try the merits of the case on affidavits, for such a course would be an encroachment upon the right to trial by jury. Gilchrist Transp. Co. v. Northern Grain Co., 204 Ill 510, 513, 68 NE 558 (1903). The only question for a court to decide is whether from the motion to open judgment it appears that the defendants have a defense which entitles them to a trial on the merits. National Blvd. Bank of Chicago v. Corydon Travel Bureau, Inc., 95 Ill App2d 281, 285, 238 NE2d 81 (1968). Consequently, the affidavits of defendants filed in support of their motion to open judgment by confession are in the nature of pleadings of defense to plaintiff’s action and not evidentiary in nature. It is well settled that affidavits constitute part of the pleadings. Healey v. Charnley, 79 Ill 592 (1875). Since said affidavits are pleadings and not evidentiary, failure of plaintiff to object to affidavits in which affiants did not allege that if sworn as witnesses they could testify competently at trial does not amount to a waiver of the application of the Dead Man’s Statute to defendants as witnesses at trial.

Defendants cite various cases for the proposition that failure to object to the affidavits does amount to a waiver of the application of the Dead Man’s Statute to defendants as witnesses. We need comment only on two of those cases. In Classen v. Heil, 330 Ill App 443, 71 NE2d 537 (1947), the court merely held that failure of the plaintiff to object to the defendant’s affidavit at the time of its presentation constituted a waiver of the objection to the affidavit at a future date; it did not make the defendant a competent witness to testify at trial. In Karlos v. Pappas, 3 Ill App2d 281, 121 NE2d 611 (1954), the court merely affirmed an order opening judgment by confession where the fact that the person whose affidavit was filed was not a competent affiant was not brought to the attention of the trial court prior to the entry of such order. Neither case concerns waiver of incompetency of the witnesses at the trial of the issues.

We find that the plaintiff did not waive his objection to defendants’ incompetency at trial and that the trial judge did not err in barring one of the defendants from testifying in his own behalf by reason of the provisions of the Dead Man’s Statute. Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J. and Murphy, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Albert Gammons, Defendant-Appellant.
    Gen. No. 53,281.
    First District, Third Division.
    October 1, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for defendant-appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael J. Goldstein, Assistant State’s Attorneys, of counsel), for plaintiff-appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a jury trial the defendant was convicted of murder and sentenced to the Illinois State Penitentiary for a term of twenty to forty years. On appeal, defendant contends that the trial court erred (1) in admitting evidence that the victim was mentally retarded, (2) in admitting testimony on direct examination that a witness was afraid, both for herself and her family, to testify on behalf of the State, and (3) in sentencing him to the penitentiary rather than committing him to the custody of the Illinois Youth Commission. Since the defendant does not challenge the sufficiency of the evidence presented by the State, a detailed factual summary is not necessary for the disposition of the issues raised on this appeal.

At approximately 6:30 p. m. on November 24, 1967, Sherman Buckley was walking south on Calumet Avenue toward 49th Street in the City of Chicago. He was stopped by the defendant and one Robert Lee Brazelton. The defendant asked Buckley whether he was a “D,” meaning Disciple, the name of a neighborhood youth gang. Buckley, who appeared to be frightened, did not respond and was, thereupon, hit and repeatedly kicked by the defendant and Brazelton. When the attacks ceased a few minutes later, Buckley was lying on the ground and his assailants rose and walked to the corner of 49th Street and Calumet Avenue. Shortly after that, Buckley rose and in a bent over position as if injured, ran across Calumet Avenue and turned the corner at 49th Street. Two eyewitnesses to the attack testified that when they arrived at the corner, they observed the defendant wiping the blade of a kitchen knife with a brown paper bag. One witness said she heard the defendant boast, “I stabbed him about seven or eight times.” Buckley suffered seven stab wounds in the chest and back and died a short time later at Provident Hospital. We proceed to consideration of defendant’s first point.

Defendant contends it was error for the State to introduce evidence of the victim’s mental retardation. The fact that he was retarded explains his remaining mute and confirms the description of his conduct when he was asked by the defendant whether he was a “D.” As the State contends, it also establishes the identity of the deceased. It was competent on those grounds, but if we assume the evidence was irrelevant, it does not follow that the judgment of conviction must be reversed and a new trial ordered.

The seriousness of any trial error must be considered in relation to the facts of each individual case to determine whether a new trial is warranted. People v. Greeley, 14 Ill2d 428, 152 NE2d 825. It has been repeatedly held that a judgment of conviction need not be reversed because error has been committed unless it appears that real justice has been denied or that the verdict of the jury may have resulted from such error. People v. Tranowski, 20 Ill2d 11, 169 NE2d 347; People v. Bridges, 28 Ill2d 165, 190 NE2d 719. The defendant’s guilt was established beyond all reasonable doubt without regard to the evidence complained of and under such circumstances the court will not reverse even if it finds the evidence was erroneously admitted. People v. McCasle, 35 Ill2d 552, 221 NE2d 227; People v. Berry, 18 Ill2d 453, 165 NE2d 257; People v. Ashley, 18 Ill2d 272, 164 NE2d 70; People v. Burger, 259 Ill 284, 102 NE 751.

Defendant contends that the trial court erred in permitting the State to elicit testimony during the direct examination of an eyewitness that she gave a false statement to the police because of the fear of possible .reprisals from the defendant or his gang. During cross-examination of the same witness, however, the defense brought out details of the earlier statement and thoroughly questioned the witness with respect thereto. A witness is entitled to an opportunity to explain a prior inconsistent statement and show the circumstances under which it was made. People v. Hicks, 28 Ill2d 457, 192 NE2d 891; People v. Izzo, 14 Ill2d 203, 151 NE2d 329; People v. Bibbs, 115 Ill App2d 200, 253 NE2d 179; People v. De Marco, 44 Ill App2d 459, 195 NE2d 213. While we have previously noted that the appropriate place for such an explanation is on redirect examination after the prior statement has been used for impeachment (People v. De Marco, supra), we can discern no prejudice resulting to the accused from the deviation from that order of proof in the instant case.

Defendant contends finally that he was only sixteen years old at the time the crime was committed and while he was seventeen at the time of sentencing, he should not have been sentenced to the penitentiary, but should have been committed to the custody of the Illinois Youth Commission. The statute (Ill Rev Stats, c 38, § 119-2 (1967)) provides in pertinent part:

“(a) All male persons 17 years of age or over sentenced to a term of imprisonment in a penitentiary shall be sentenced to and confined in the Illinois State Penitentiary. [Emphasis added.]
“(b) All male persons under 17 . . . sentenced to imprisonment shall be committed to the Illinois Youth Commission. . . .”

It is undisputed that defendant was seventeen years old at the time of his trial and sentencing. The plain import of the statute hereinbefore set forth is that the age of a defendant at the time he is to be incarcerated determines whether he should be committed to the Commission. The comments which accompany the statute reinforce this construction. They state that when a youth reaches the age of seventeen, he may be transferred to the penitentiary. Considering the amount of time which often elapses between the commission of a crime and the ultimate apprehension of the criminal, it is obvious that the intention was to have the age of the offender at the time of sentencing determine the place of confinement.

We find no reversible error in the record and the judgment is accordingly affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Charles V. Palmer, Plaintiff-Appellee, v. The Emery Transportation Company, Now Known as The Midwest Emery Freight System, Inc., Defendant-Appellant.
    Gen. No. 53,333.
    First District, First Division.
    August 17, 1970.

      Gerrard and Gerrard, of Chicago (Michael A. Gerrard and Allen S. Gerrard, of counsel), for appellant.
    James A. Dooley, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal from a judgment entered on a jury verdict in the amount of $55,000 in a personal injury action in favor of the plaintiff, Charles V. Palmer, against the defendant, Emery Transportation Company, now known as the Midwest Emery Freight System, Inc.

There were disputes as to the facts of the occurrence and the extent of plaintiff’s injuries. Plaintiff, a truck driver, was the only witness to the occurrence. He left his home terminal in Pennsylvania with a load of beer. He drove a diesel powered tractor and trailer over his regular run to Milwaukee. After leaving Milwaukee, he proceeded alone at about 55 m. p. h. in a southerly direction on the Tri-State Tollway on May 25, 1960, until he arrived in Worth Township, Cook County, Illinois. The Tollway at this point had two lanes and a blacktop berm along the side. He overtook a tractor trailer unit, the name on which he couldn’t make out. He blinked his lights to let the other driver know he was going to pass, was given a signal to pass, and as he pulled out to pass, noticed that the trailer was red and the name on the truck was “EMERY” in block letters. A few minutes later he saw that the truck he had just passed was going around him. When that truck got to where the tractor and trailer hook together, it started cutting toward him. Plaintiff testified that he took his foot off the throttle, started tapping the airbrakes, blew his horn and drove onto the blacktop berm. He heard a scrape, and his truck went down the embankment. Plaintiff attempted to straddle the ditch, but couldn’t, and his truck went over on its right side, throwing him across the right door against the window and other parts of the truck. The other vehicle continued on without stopping. Plaintiff testified as follows: “I had occasion to see a sign on the side of this cab as he was cutting over towards me. The cab had Emery Transportation Company and a bunch of numbers on it; that is Emery on one line and Transportation Company on another line. The color of the letters were white.” Plaintiff said that he had seen other red vehicles owned by Emery before the accident. He had also seen green ones, but never silver or yellow.

Harold Eubenstein, an official of the defendant, testified that his firm employed about 500 drivers and owned about 500 tractors and 900 trailers. The company’s policy was for its vehicles not to use the Tri-State Tollway because of the expense involved. The uniform color of its 500 tractors was yellow and its trailers were of a metallic color on the day in question. He said that on that date his firm did not own or operate a red tractor or trailer, and had never owned or operated a green tractor or trailer. He testified that the defendant never had just the name “EMEEY” on its trucks, and the name was never printed in white. Mr. Eubenstein said that there is another company with the name Emery called Emery Air Freight which also uses the highways, but has no relation to the defendant. A vice-president of the defendant also testified that its vehicles were yellow on the date in question. Samuel J. Eoss testified that he had been a painter for Midwest Emery for 22 years and that every truck owned or leased by the defendant came through his parts shop in Chicago. In May, 1960, the company had yellow cabs with black fenders and red chassis and silver trailers.

James Van Zeyl, a state police officer, testified that when he arrived at the scene of the accident, plaintiff was shaken up so he called an ambulance. He testified that plaintiff told him that another truck passed in front of him and he lost control of his truck. Plaintiff did not tell the officer anything about the identity of the other truck other than that it was a semi. Officer Van Zeyl said that there were no skid marks and plaintiff never told him that he jammed on his brakes.

In rebuttal, plaintiff’s witnesses included a truck driver who said he had seen red cabs with “Emery Transportation Company” and “EMEEY” in black letters. Another truck driver had also only seen red tractors with “EMERY” on the box. A Regional Safety Inspector for the United States Department of Transportation said that he had seen the defendant’s tractors painted yellow and some that were red and green. He had never seen any trailers that were red or green. He had seen the yellow equipment around May, 1960, but couldn’t recall if he had seen any other colors at that time. A second safety inspector said that in 1960 Emery had yellow, red, blue and brown tractors. The trailers were primarily silver. Some had “EMERY” on them.

Defendant’s main contention on appeal is that a number of improper questions and prejudicial remarks made by plaintiff’s counsel deprived it of a fair and impartial trial and that this misconduct necessitates a new trial. After a thorough examination of the record, we are compelled to agree.

In his opening statement, after outlining what the evidence would show as to the occurrence, plaintiff’s counsel enumerated some of the injuries and resulting damages sustained by plaintiff. He then told the jury, “The evidence will be that his bills were paid for by the Department of Public Assistance of the State of Pennsylvania which have (sic) to be reimbursed.” To this statement an objection was made and sustained.

During direct examination of the plaintiff by his counsel, plaintiff testified concerning the doctors he had seen and the expenses he had incurred. He was then asked:

Question: “Who took care of those bills ?”
Mr. Gerrard: “Object, if your Honor please.”
Mr. Jenkins: “Someone had to take care of them. I think I have a right.”
Mr. Gerrard: “I object to counsel’s statement.”
The Court: “I will sustain that objection.”
Mr. Jenkins: “In any event, you didn’t have to pay those bills, did you?”
Answer: “No, sir, I did not.”
Question: “Up to the present time, that is.”
Answer: “Yes.”
Mr. Gerrard: “Object, if your Honor please, to that statement.”
The Court: “It is overruled.”

During the further examination of this witness, after the witness testified that he still wears a sacroiliac brace, the following took place:

Question: “I have here what has (sic) been marked plaintiff’s exhibits No. 1, 2, 3, 4, 5. Now are these medical bills that you are yourself paying?”
Answer: “Yes, sir.”
Mr. Gerrard: “Objection, if your Honor please.”
The Court: “Just a minute, let’s have a conference.”
Mr. Jenkins: “Your Honor, I will withdraw these bills.”
The Court: “Let’s look at them before we go ahead.”
(Whereupon a discussion was had outside the presence of the jury.)
Mr. Jenkins: “I want the record to show that I am withdrawing plaintiff’s exhibits No. 1 through 5 which are various medical bills.”

As the Supreme Court stated in Crutchfield v. Meyer, 414 Ill 210, 214, 111 NE2d 142, 144:

The rule in this State must be regarded as settled that misconduct of counsel of the character mentioned is sufficient cause for reversing a judgment, unless it can be seen that it did not result in injury to the defeated party. The questions to be determined are, therefore, whether the improper argument was of such a character as was likely to prejudice the defeated party, and, if so, was the verdict clearly so right that a new trial ought not to be granted because of such prejudicial argument.

We believe plaintiff’s counsel improperly and prejudicially implanted in the minds of the jury that plaintiff was on relief and would have to reimburse the State of Pennsylvania for his medical expenses. Plaintiff’s counsel continually attempted to draw the jury’s attention to plaintiff’s medical bills. Counsel implied that plaintiff was impecunious, but would have to repay the bills if he did not win the suit and that defense counsel was trying to keep important information from the jury.

This was clearly improper. See Jacobson v. National Dairy Products Corp., 32 Ill App2d 37, 176 NE2d 551, where defense counsel also referred to plaintiff’s financial condition and was successful in getting before the jury that he had important information which his opponent was depriving the jury the opportunity of hearing. In Hickey v. Chicago Transit Authority, 52 Ill App2d 132, 201 NE2d 742, the court commented that several remarks of plaintiff’s counsel during the course of the trial implied that plaintiff was impecunious and in final argument compounded the prejudice. The court held that reference to the financial condition of the parties in final argument was improper.

In addition we feel that it was unfair in such a close case for plaintiff’s counsel to comment in his closing argument on the failure of the defense to produce some of its truck drivers or dispatchers as witnesses on the question of the color of its trucks, when it had produced other evidence on that point.

We do not agree with plaintiff’s counsel that the defendant fails to recognize the realities of a trial nor are we persuaded by the cases cited to us by plaintiff. The question of whether improper argument deprived a litigant of a fair trial is considered in the light of its own particular facts. After examining the record, we are not in accord that the improper and prejudicial actions were provoked by conduct by the defense counsel. Nor do we believe that the error was cured by the instruction to the jury by the court to disregard it. The damage was done. See Berg v. Collier, 60 Ill App2d 145, 208 NE2d 353, which was also a close case in which the court concluded that a direction to disregard an improper question and answer did not remove the prejudicial effect.

We repeat this was a close case on the facts. Plaintiff’s version was the only testimony as to the actual occurrence. The evidence was in sharp conflict. In consequence, the jury might have determined the issues for either party. It, therefore, becomes vitally important that the jury not be influenced or prejudiced by any improper conduct by counsel which deprives either party of a fair trial. The prejudicial misconduct as set out above, especially in such a close case, could, in our judgment, have affected the issue of liability as well as damages. The case must therefore be remanded for another trial.

Since the case must be retried, we do not deem it necessary to discuss other issues raised by the defendant. The judgment of the Circuit Court is reversed and the case remanded for a new trial.

Reversed and remanded.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ozie Bazzelle, Defendant-Appellant.
    Gen. No. 53,356.
    First District, Second Division.
    September 29, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (William J. Martin, James B. Haddad, Northwestern University School of Law, and Theodore A. Gottfried, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Robert McGee, and Scott Cisney, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty by a jury of the crime of attempt rape and sentenced to a term of seven to fourteen years in the penitentiary. He appeals.

On the afternoon of June 24, 1967, the prosecutrix, an out-of-town visitor to Chicago, was walking in Grant Park in the vicinity of 800 South Michigan Avenue. A man, whom she later identified as the defendant, approached the prosecutrix and asked her for a dime. She refused the request and sought to avoid him, but he persisted in his solicitations. Defendant then took hold of the prosecutrix’s arm and forced her to accompany him to another area of the park, a grassy place behind a concrete wall. When the prosecutrix screamed and attempted to get away, the defendant struck her in the face with his fist several times. The prosecutrix continued to struggle and at one point bit the defendant on the left side of the face, near the jaw. The defendant continued to beat the prosecutrix, and once struck her so hard that she almost lost consciousness.

Both the defendant and the prosecutrix were on the ground, the defendant kneeling on the prosecutrix. The defendant then raised the prosecutrix’s dress, pulled her underpants down to her knees, and placed his knee on top of the undergarment. He then unzipped his trousers and laid down on the prosecutrix with his penis resting on top of her; she testified that she felt his penis moving for about a minute and a half. Defendant then asked the prosecutrix to accompany him for a beer, which invitation she accepted because it appeared it would offer her an opportunity for escape. She was permitted to rearrange her clothing, while the defendant retained a firm grip on her arm. The pair then proceeded a short distance to a place where the defendant retrieved a rusty colored blanket, a silver teaspoon, and a Bible. They then proceeded along a sidewalk, defendant still holding onto the prosecutrix.

After a short walk, the prosecutrix again attempted to escape. Defendant struck her in the face several more times, threw her to the sidewalk and twice struck her head against the concrete. As the defendant momentarily released the girl, she escaped and fled across Michigan Avenue to a hotel. The prosecutrix, who at that point was crying hysterically, told the desk clerk what had happened and to call the police. The prosecutrix then returned to the doorway of the hotel to see if the defendant was still in the vicinity, and she saw him across the street coming from the place from which she had fled. The defendant was still carrying the blanket and the Bible.

A patron in the lobby of the hotel left the hotel and followed the defendant, never leaving him out of sight. He hailed a passing police car and informed the officers of the situation, and the officers took the defendant into custody.

The officers returned the defendant to the hotel and took him into the presence of the prosecutrix, who identified him as her assailant. The period elapsed from the time when the prosecutrix made her escape until the time when the officers brought the defendant to the hotel was two to three minutes. Defendant was then transported to police headquarters at 11th and State Streets where he was interviewed by police officers. The prosecutrix was also taken to the police headquarters where she again identified the defendant who was seated between police officers. The prosecutrix was then taken to a nearby hospital for medical attention.

The evidence reveals that the prosecutrix’s face and mouth were swollen, that both her eyes were blackened, and that she suffered pains about the neck and chest. She testified that she also observed that the defendant had what appeared to be teeth marks on the left side of his face, and that he had several other red marks on his face and red spots on his clothing.

Defendant raises several contentions relating to the admission into evidence of the prosecutrix’s in-court identification as having been tainted by certain aspects of the pretrial identifications of the defendant by the prosecutrix. He first argues that absence of counsel at the two pretrial identifications violated his constitutional right to counsel, citing United States v. Wade, 388 US 218, and Gilbert v. California, 388 US 263.

Both viewings of the defendant by the prosecutrix occurred shortly after the commission of the crime and prior to the indictment returned against the defendant in this matter. The Court in People v. Palmer, 41 Ill2d 571, 244 NE2d 173, addressed itself to the question of whether the decisions in Wade and Gilbert required counsel in preindictment situations. The Court determined that those two cases did not require counsel in preindictment confrontations, but that the question of a possible denial of due process of law in such situations would be governed by the principles set out in Stovall v. Denno, 388 US 293, 301-302. (See also Simmons v. United States, 390 US 377, at 382-383, where the Court referred to the Gilbert and Wade decisions and stated that they required that an accused be afforded or allowed counsel at any “critical stage of the prosecution” and that a posiindictment lineup was such a critical stage.)

Defendant argues that the trial court erroneously admitted into evidence the in-court identification without a prior hearing to determine its origin and whether it had been tainted by the two prior preindictment identifications.

Prior to the trial of this matter, the defendant had requested a hearing to determine the circumstances surrounding the two pretrial identifications. Hearing was set for the following morning, but on the following morning opening statements were immediately commenced and the prosecutrix was called to the stand. After practically all of her testimony on direct examination was given, the defendant made mention of the fact that no hearing had been held. The court had already heard the circumstances surrounding the prosecutrix’s identification of the defendant at the hotel and stated that it was an on-the-scene identification and that therefore no constitutional issue was involved. Defendant did not thereafter renew his request for a hearing and commenced cross-examination of the prosecutrix, going extensively into the pretrial identifications she had made of the defendant. Under the circumstances there was no error in this regard.

Defendant next argues that the court erred in admitting into evidence the in-court identification of the defendant since the two prior identifications were unnecessarily suggestive and conducive to irreparable mistaken identification. We disagree.

If the in-court identification springs from a source independent of the allegedly tainted pretrial identification, it will be admissible as evidence. People v. Blumenshine, 42 Ill2d 508, 513-514, 250 NE2d 152. The prosecutrix was with the defendant from fifteen to twenty minutes before, during, and after the commission of the crime. The evidence is uncontradicted that she had ample time, light, and opportunity to observe the defendant on a face-to-face basis during this period. The prosecutrix testified that prior to her escape from the defendant he had retrieved a blanket and a Bible from the park, and that after her escape and when she pointed out the defendant as her assailant prior to his apprehension, he was emerging from the place from which she had just moments before made her escape, carrying the blanket and the Bible. Observation of the defendant was then kept by a patron of the hotel, who followed the defendant on the street until the police were summoned, and apprehended the defendant. The prosecutrix testified that she bit the defendant on the side of the face, and that after she identified him at the hotel she noticed what appeared to be teeth marks on the side of his face. Finally, there elapsed only two to three minutes between the time the prosecutrix made her escape from defendant and the time the officers returned him to the hotel. The prosecutrix’s identification of the defendant at trial therefore had an origin independent of the two pretrial identifications.

Further, the first pretrial identification must be considered to have been an on-the-scene identification due to the rapid sequence of events and the negligible lapse of time between the prosecutrix’s escape and the identification at the hotel. On-the-scene identifications have never been condemned by the courts. People v. Moore, 104 Ill App2d 343, 352-354, 244 NE2d 337; People v. Lynch, 111 Ill App2d 52, 65-66, 249 NE2d 649.

Finally, the prosecutrix’s testimony concerning the identification at the police station did not prejudice the defendant’s right to a fair trial because that identification had been preceded by the on-the-scene identification and by the prosecutrix’s independent observations of the defendant before, during and after the commission of the crime.

Defendant next contends that the People failed to prove him guilty of the crime of attempt rape in that they failed to show that he attempted penetration of the prosecutrix’s sexual organ with his own.

The crime of “Attempt” is defined by the Criminal Code as:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” Ill Rev Stats 1967, c 38, par 8-4 (a).

The crime of “Rape” is defined as:

“A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape.
“Sexual intercourse occurs when there is any penetration of the female sex organ by the male sex organ.” Ill Rev Stats 1967, c 38, par 11-1 (a) and (b).

When the intent to commit a specific crime is not admitted by the accused, it may be shown by the circumstances surrounding the event. People v. Coolidge, 26 Ill2d 533, 187 NE2d 694. The defendant forced the prosecutrix into a secluded area of a city park; struck her in the face several times; threw her to the ground; kissed her several times; lifted her dress and pulled down her undergarment; exposed his penis; and placed his body upon her body. From this evidence the jury could reasonably have found that the defendant intended to rape the prosecutrix and that by his actions had taken a substantial step toward the fulfillment of that intent. The fact that the defendant placed his knee on the prosecutrix’s undergarment which was around her knees was for the jury to consider, in light of the prosecutrix’s testimony that it was in that manner that defendant had held her to the ground as he unzipped his trousers.

Defendant also argues that it was error for defense counsel, without prior consultation with the defendant, to stipulate at trial that the prosecutrix had been the victim of an attempt rape. It was stated at trial by defense counsel that the only viable issue was the identity of the attacker. As shown above, sufficient evidence was adduced at trial, apart from the stipulation, from which the jury could reasonably have found the defendant guilty as charged. Furthermore, a review of the record reveals that defendant’s defense centered solely around the question of identity. The stipulation was clearly a matter of trial strategy. See People v. Hawkins, 27 Ill2d 339, 189 NE2d 252. The case of People v. Martin, 115 Ill App2d 402, 252 NE2d 722, cited by the defendant is inapposite on its facts.

The final contention raised is that the trial court erred in refusing to give defendant’s tendered Instruction Number 12, which reads as follows:

“It is the duty of the jury to consider the defendant’s case as if he were a white man, for the law is the same as to both white and colored men, there being no distinction in principles in respect to color.”

The instruction would have informed the jury that the race of the defendant should play no part in their deliberations as to his guilt or innocence. The instruction contained no more than that which People’s Instruction Number 6 contained, which was given to the jury:

“The Court further instructs you that under your oaths, you should not allow sympathy or prejudice to influence you in the least in finding your verdict in this case. In your deliberations you should not be influenced by anything other than the law and the evidence in the case.”

There is authority to the effect that an instruction such as that tendered by defendant should be given to the jury. People v. Kirkendoll, 415 Ill 404, 114 NE2d 459; People v. Crump, 5 Ill2d 251, 125 NE2d 615. However, in light of the People’s instruction given to the jury relating to sympathy and prejudice and in light of the overwhelming evidence of guilt in the record, we hold that the refusal of defendant’s tendered Instruction Number 12 was not reversible error. (See Harrington v. California, 395 US 250.)

For these reasons the judgment is affirmed.

Judgment affirmed.

McCORMICK, P. J. and LYONS, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rufus Tyson, Defendant-Appellant.
    Gen. No. 53,432.
    First District, Second Division.
    September 29, 1970.

      John G. Stifler, of Chicago (Jenner & Block, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joseph S. Witkowski, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

At a jury trial the defendant was found guilty of automobile theft and was sentenced to the Illinois State Penitentiary for a term of from two to eight years. As grounds for his appeal the defendant argues that the trial court improperly refused to permit him to be represented by counsel of his own choice; that he was not proved guilty beyond a reasonable doubt; and that the closing argument of the State’s Attorney was unduly prejudicial.

On December 9, 1967, the defendant was arrested and charged with theft of an automobile; on February 1, 1968, he was indicted by the Grand Jury for. theft in excess of $150, and for criminal trespass to a vehicle. The defendant was arraigned on February 8, 1968, and entered a plea of not guilty. On that date he told the court he had no attorney and was not financially able to engage one. Without objection, the court appointed the Public Defender as defendant’s attorney, and the case was set to be tried on March 7, 1968. On that date the defendant moved for a continuance to April 15, 1968, and a motion was granted, although the State indicated it was ready to proceed to trial and had the complaining witness in court.

On April 15, the case was again called for trial, and the Assistant Public Defender informed the court that the defendant would need another continuance in order to obtain his own attorney. The defendant himself told the court that he would like a continuance so that his mother could hire an attorney to represent him. His mother told the court she had enough money to hire an attorney for her son. At this time the Assistant State’s Attorney said he believed the defendant was employing dilatory tactics to discourage the State’s witnesses from testifying, and he indicated “it is reaching a point where the State’s witnesses will not appear and testify in court.” Before ruling on the motion the court stated that there was no defense counsel before him other than the Public Defender, and added, “I think it would be a disservice to the defendant himself along with the administration of justice to continue the matter further.” He then denied the motion.

The State agrees that the Sixth Amendment to the Constitution guarantees the assistance of counsel in criminal cases and that the defendant has the right to employ counsel of his own choosing. It is urged, however, that this is a qualified right and that the defendant is not entitled to assert the privilege at any time he wishes. The State argues specifically that since the Public Defender was appointed on February 8, 1968, and that no objection to the appointment was made until the date of trial — some two months later — the request was not made in good faith and was properly denied.

The State argues that a defendant is not entitled to interfere with the proper administration of justice, and that the motion for a continuance was an attempt to so interfere. Regardless of defendant’s motives, we agree that the trial court properly denied the motion for a continuance. In People v. Solomon, 24 Ill2d 586, 182 NE2d 736 the court said at 589:

“The granting of a continuance to permit preparation for a case, or for the substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. (People v. Surgeon, 15 Ill2d 236; People v. Clark, 9 Ill2d 46.) Before a judgment of conviction will be reversed because of the denial of such a motion, it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights.”

It was found that the trial court had properly refused defendant’s continuance since it appeared doubtful that the defendant would obtain other counsel.

In People v. Ritchie, 66 Ill App2d 417, 213 NE2d 306, the court applied the Solomon principles and ruled that under the facts of the case the defendant was entitled to a continuance in order to obtain counsel of his own choosing. The Public Defender advised the court that a private attorney had contacted him and asked him to obtain a continuance since “he might enter his appearance in the case.” After the motion had been denied the Public Defender remained in the courtroom although the “trial proceeded with little representation of the defendant by the public defender and essentially none by the defendant.” (Page 420.)

In the instant case, however, there was no attorney who had indicated a willingness to file his personal appearance, and after the motion was denied the defendant allowed the Public Defender to represent him. This court’s statement in People v. Boston, 89 Ill App2d 49, 52, 232 NE2d 224, is fully applicable to this case:

“Nor was there any showing that in the representation of defendant by the Public Defender (who was prepared and ready for trial, and did a competent job of cross-examining the State witnesses) anything took place which ‘embarrassed’ or ‘prejudiced’ defendant’s rights.”

In the instant case, the defendant did not object to the appointment of the Public Defender until the very moment his cause was to be tried. As stated in People v. Leman, 95 Ill App2d 212, 238 NE2d 213, at 216, “This, in itself, has been held appropriate grounds to deny the substitution because of the staleness of the demand. People v. Jones, 51 Ill App2d 391, 201 NE2d 194 (1964); People v. West, 80 Ill App2d 59, 225 NE2d 397 (1967).” The trial judge did not abuse his discretion when he denied defendant’s motion for a continuance based on the ground that he wished to hire his own attorney.

The defendant further asserts he was not proved guilty beyond a reasonable doubt. The statement in defendant’s brief seeks to give the impression that the State’s case rests on a weak link of circumstantial evidence; namely, the defendant’s presence at the place where the car was abandoned. An examination of the record reveals quite a different situation. Two police officers testified at the trial that they had observed a Chevrolet automobile speeding on Madison Street and had pulled up behind it in their squad car. The driver of the Chevrolet ignored their indications to him to pull over and they continued in pursuit, never losing sight of the car. One of the officers testified that the driver finally pulled into a vacant lot; that “When the automobile stopped, he jumped out and started to run, and he was overtaken by fellow officers on the scene led by my partner and me.” He then identified the defendant as the man who left the car.

Another of the arresting officers testified as follows: “I didn’t turn into the driveway. And we observed the defendant depart from the vehicle. We jumped out of the car — I jumped out of the car and he was apprehended.” He added that the defendant was “the man that jumped out of that vehicle and was apprehended. . . .” This was direct eyewitness testimony of a very convincing character which makes it easier to understand why the jury found as it did.

The defendant testified that he happened to be at the scene because he was doing some repair work on his mother’s building across the street from the lot where the stolen ear was abandoned. Having offered this defense, the defendant now contends that the jury was bound to accept his explanation and, accordingly, find him not guilty. However, where two versions are presented, it is the jury’s duty to consider the credibility of the witnesses and decide who is telling the truth. By its verdict the jury has shown that it found the police officers were telling the truth, and it cannot be said that this conclusion was unreasonable.

The defendant argues that he simply happened to be crossing the street when the police arrested him. The officers, however, testified that they saw him get out of the stolen car and that they had seen his face when they first pulled up behind him and he turned around before driving off. In an attempt to impeach that identification testimony, defense counsel placed the defendant’s mother on the stand. She stated that Officer Tomaska, who testified at the trial, had said at a preliminary hearing that the driver was going too fast for him to make an identification. However, no court reporter was present at that hearing, and there was available only an unintelligible tape of those proceedings. The jury was then required to determine the truth. The defendant’s assertion that the officers were impeached cannot be accepted. The State presented evidence which, if believed, was sufficient to support a judgment of conviction. Obviously, the State’s evidence was believed by the jury.

Finally, the defendant argues that the prosecutor engaged in prejudicial comment in his closing argument to the jury. While on the stand, the defendant was asked if he had any prior convictions, and he admitted to having once been convicted of auto theft. In his closing argument the prosecutor referred to the defendant as an “admitted auto thief,” and said the defendant displayed little regard for the safety of others. However, convictions are not reversed on the ground of improper comment, when the evidence of guilt is clear and convincing unless it appears that the remarks may have influenced the result, or that the verdict could have been otherwise had the remarks not been made. People v. Naujokas, 25 Ill2d 32, 38, 182 NE2d 700; People v. Hines, 30 Ill2d 152, 157, 195 NE2d 712. We think the evidence of guilt presented in the instant case was clear and convincing, and the above rule is applicable.

The jury heard defendant’s testimony. When the prosecutor referred to the defendant as an admitted auto thief he did so in connection with the defendant’s credibility, a technique which is permissible. The prosecutor did not suggest that defendant’s prior conviction indicated he was a professional automobile thief; if he had, such comment would have been improper. People v. Donaldson, 8 Ill2d 510, 518, 134 NE2d 776. Rather, the prosecutor said: “Are you going to believe the two police officers, ... or are you going to believe the defendant, an admitted auto thief ?”

In People v. Miller, 13 Ill2d 84, 148 NE2d 455, at 109, the court said:

“It is not improper for the prosecuting attorney to reflect unfavorably on the defendant, or to comment on his actions, if based on competent and pertinent evidence. (People v. Moore, 9 Ill2d 224; People v. Stephens, 6 Ill2d 257.)”

See also People v. Snell, 74 Ill App2d 12, 19, 219 NE2d 554; and People v. Welton, 96 Ill App2d 167, 173, 238 NE2d 141. The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS and BURKE, JJ., concur.


author: PRESIDING JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Herman Ashton, Defendant-Appellee.
    Gen. No. 53,480.
    First District, Second Division.
    September 29, 1970.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant; Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Lenair, Defendant-Appellant.
    Gen. No. 53,506.
    First District, Fourth Division.
    September 23, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos, Assistant Public Defender, of counsel), for appellant.
    , Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Reilley, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

In a five-count indictment, defendant was charged with two armed robberies, two aggravated batteries and an attempt to murder. He waived trial by jury. The court found him guilty and imposed concurrent terms of six to ten years on one count of armed robbery and one count of aggravated battery.

Defendant appeals, contending that (1), the trial court erred in denying his motion to suppress identification evidence; (2), his waiver of trial by jury was not knowingly and understandingly made; (3), the pretrial identification procedure used by the police was unnecessarily suggestive and so conducive to irreparable mistaken identification that defendant was denied due process of law; (4), the trial judge committed prejudicial error admitting in evidence a gun without proof connecting it with the defendant; and (5), he was not proven guilty beyond a reasonable doubt.

On July 19, 1967, at about 11:00 a. m., Gloria Stewart was working as a barmaid in a tavern at 1018 North Wells Street, Chicago. Two men entered. A short time later, Jeff Wright, a regular patron of the tavern came in. He went to his favorite booth but found it occupied by a man whom, at the trial, Wright identified as the defendant. Not being able to sit in his usual spot, Wright sat at the bar, his back to the booth. Neither Gloria Stewart nor Jeff Wright had ever seen the man before. This man remained in the tavern for about half an hour, his companion having left earlier.

While Wright was seated at the bar, he saw the man in the booth drop a gun to the floor. The man picked up the gun. Gloria Stewart, who also saw the incident, left the bar to go call the police. As she did, the man took the gun, held it on Miss Stewart and told her to get back behind the bar. He gave similar orders to Jeff Wright. He forced Gloria Stewart and Jeff Wright to their hands and knees. Gloria Stewart was ordered to open the cash register and the man took the money that was in it. He then struck Jeff Wright with the gun. As Wright pulled at the man’s legs, the man shot him in the face, just below the right eye. The man then took a pint of whiskey off the shelf and left the tavern. The police were called. Jeff Wright was taken to a hospital. Either that day or the next, Gloria Stewart picked out a picture of the defendant from a number shown to her by the police. On October 17, 1967, defendant was arrested and the five-count indictment was returned against him.

Prior to trial, defendant moved to suppress the State’s identification evidence. When the motion was heard, Detective Vincent Sandore, the officer who investigated the robbery, and Jeff Wright were in court. Defendant called them as witnesses in support of his motion. Their testimony disclosed that one hour before the hearing, Sandore showed Wright two photographs, both of the same person, the defendant. In addition, Wright testified that on December 1, 1967, after Detective Sandore told him “that he had the man” who committed the robbery, he identified defendant in the felony court.

After Sandore and Wright testified, defendant’s counsel inquired if Gloria Stewart was in the courtroom. He was told she was not. Counsel then told the court that he had expected Miss Stewart to be present and be called as a witness. He requested that hearing of defendant’s motion be continued to the next day. The request was denied. The trial judge then said that he was denying the motion to suppress with leave to renew it if evidence at trial warranted its reconsideration.

Defendant contends this was error. He argues that Sandore’s showing of the two photographs to Wright was an attempt to condition the witness so he could make an identification. Defendant argues that the incident concerning the photographs, combined with the confrontation in the court, was suggestive and conducive to irreparable mistaken identification.

This argument assumes that the in-court identification by Jeff Wright was based on the two occurrences about which complaint is made. The record, however, shows that when Wright testified, he was asked how long and how close the man he identified as the defendant was in his presence in the tavern on July 19, 1967 when the robbery was committed. Wright’s answer was “[a]bout 15, 20 minutes, maybe longer. ... I would say about five feet, three stools from me.” At the time the robbery was committed and he was shot, Wright said he was close enough to his assailant to touch him. He never wavered from this testimony.

These questions were asked Wright in order to establish that his in-court identification of the defendant was based on observations of the suspect other than the felony court appearance and the showing of the photographs by Sandore. See United States v. Wade, 388 US 218, 242, 18 L Ed2d 1149, 87 S Ct 1926 (1967). We think it undeniable that Wright’s viewing of defendant in the felony court after being told that the police had the man who committed the robbery, and his being shown the two photographs by Sandore, were unnecessarily suggestive. Compare People v. Rahming, 26 NY2d 411, 259 NE2d 727 (1970); United States v. Zeiler, 427 F2d 1305 (3rd Cir 1970), 38 LW 2663.

These conclusions, however, do not dispose of the contention before us. The test which applies to situations like this one, granting there was an unfair or unconstitutional pretrial identification procedure, is one that will determine whether the in-court identification of defendant was induced by the tainted procedure or had a prior independent origin. See Wong Sun v. United States, 371 US 471, 9 L Ed2d 441, 83 S Ct 407 (1963). Application of this test requires consideration of what prior opportunity Jeff Wright had to observe defendant at the time of the alleged criminal acts. People v. Taylor, 123 Ill App2d 430, 258 NE2d 823.

Consistent with these principles, we have held that where an unfair pretrial identification procedure is shown, the subsequent in-court identification may nevertheless be admissible if the prosecution shows that the in-court identification had a prior independent origin, arising from other uninfluenced observation of the person later identified as the defendant. People v. McMath, 104 Ill App2d 302, 244 NE2d 330, affirmed 45 Ill2d 33, 256 NE2d 835; People v. Cook, 113 Ill App2d 231, 252 NE2d 29. By these standards, the unshaken testimony of Jeff Wright established a prior independent source for his in-court identification of the defendant. People v. Gates, 123 Ill App2d 50, 259 NE2d 631. Therefore, it was not error for the trial court to overrule the motion to suppress.

The next contention concerns defendant’s waiver of trial by jury. The record discloses a colloquy, in Chambers, while a jury panel was waiting in the courtroom.

THE COURT: “. . . Mr. Lenair, do you wish to be tried by this Court or by a jury?”
THE DEFENDANT: “This Court.”
THE COURT: “You know your constitutional rights, you have a right to be tried by a jury, you understand that?”
THE DEFENDANT: “Yes, Sir.”
THE COURT: “You have a right to be tried by a jury.”
THE DEFENDANT: “Yes.”
THE COURT: “You wish to be tried by this Court, rather than a jury, is that correct?”
THE DEFENDANT: “Yes, sir.”
THE COURT: “Sign the jury waiver then.”

The defendant signed the jury waiver. The panel was returned to the jury room. On these facts, defendant argues it was error for the trial judge to accept his jury waiver without eliciting from him an acknowledgment that he knew and understood the nature of a jury trial.

There is no precise formula for determining whether waiver of trial by jury is under standingly made by a defendant. People v. Richardson, 32 Ill2d 497, 499, 207 NE2d 453. Whether there is an understanding jury waiver depends on the facts and circumstances of each case. People v. Spencer, 115 Ill App2d 398, 253 NE2d 672. Defendant was furnished counsel well in advance of trial. Compare People v. Baker, 126 Ill App2d 1, 262 NE2d 7. When asked by the trial judge whether he wished to be tried by the court rather than by a jury, defendant answered, “Yes, sir.” When he was instructed to sign the jury waiver, he manifested understanding and did so. We conclude that defendant knowingly and understandingly waived his right to trial by jury. People v. Steenbergen, 31 Ill2d 615, 203 NE2d 404.

In presenting its case, the State called Gloria Stewart. Without objection, she identified defendant as the man who entered the tavern on July 19, 1967, remained there “about a half an hour,” committed the robbery and shot Jeff Wright. She said she served the defendant beer; and in distance feet, she was as close to him as “ [m] aybe three, maybe not that far.” At the time of the robbery, Miss Stewart said she was as near to the defendant as two feet. She described the defendant as having hair “. . . in a process . . . his goatee . . . under here, on his chin ... he was wearing a hat and a beige looking sweater or shirt.” When the police came, she gave them a description of the man she later said was the defendant. A report of this description was made and a copy of it was furnished defendant at the trial. James Marchetti, the officer who arrested the defendant, testified that when he took defendant into custody, “he had a process hair and a goatee.”

Miss Stewart testified that either the day of the robbery or the next day she went to a police station where she was shown some pictures and she picked out one, that of the defendant. The following day a police officer came to her place of employment, showed her some more pictures and told her to be sure “. . . that I know what I’m saying, be sure that I know the face, that I get it right.” She again picked out a photograph, that of the same man; it was a picture of the defendant. When she was examined further, Miss Stewart testified that on December 1, 1967 she and Jeff Wright were present in the felony court. She said that before the hearing, either a police officer or an assistant state’s attorney told her that the police had caught the man who committed the robbery. When defendant was brought before the preliminary examining judge, she identified him.

Defendant contends that identification of him in the felony court by Gloria Stewart and Jeff Wright "was conducted in a manner which was highly suggestive and grossly unfair, lending to great risk of error.” This is a reiteration of defendant’s contention concerning the motion to suppress. Its disposition is governed by the same principles of law. The testimonies of Gloria Stewart and Jeff Wright, despite unfairness of the pretrial identification procedure, established that their courtroom identifications had an independent origin, arising from an earlier uninfluenced observation of the defendant. See People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152; People v. McMath, supra; People v. Cook, supra. Therefore, the in-court identifications were properly admitted. People v. Moore, 104 Ill App2d 343, 244 NE2d 337.

Defendant’s fourth contention involves People’s Exhibit 1, the gun which the prosecution claims was used in the robbery of the tavern and the shooting of Jeff Wright on July 19,1967. Although defendant strenuously argues that the State’s evidence did not connect him with the gun, when it was proffered, the trial judge asked if there was any defense objection to its admission. Defendant’s counsel replied: "No objection, Your Honor.” Having failed to object, defendant cannot now urge that it was error to admit the gun in evidence. People v. Trefonas, 9 Ill2d 92, 136 NE2d 817; People v. Luckett, 24 Ill2d 550, 182 NE2d 696; People v. McNeil, 99 Ill App2d 273, 240 NE2d 721.

Finally, defendant contends that he was not proven guilty beyond a reasonable doubt. In support of this contention defendant points to his testimony that on June 25, 1967, he left Chicago and went to Lula, Mississippi where he visited his sister, Evalina Turner. He swore that it was not until between the 12th and 14th of August of that year that he returned.

Acceptance of this argument requires rejection of the State’s rebuttal by the testimony of Eddie Williams, Agnes Brock and Glovenia Orr who in varying degrees, contradicted defendant’s testimony. The testimony of these witnesses, together with that of Wright and Miss Stewart, and defendant’s which purported to establish an alibi, had to be weighed by the trial judge in determining credibility. The trial judge was not obliged to believe the defendant or his alibi evidence over the positive identification testimony of the two complaining witnesses. People v. Setzke, 22 Ill2d 582, 177 NE2d 168; People v. Pierre, 114 Ill App2d 283, 252 NE2d 706. We note that after defendant testified, the State, in rebuttal, introduced evidence on the issue of defendant’s credibility. This evidence consisted of a record showing that in 1961 defendant had been sentenced to a term of two to five years for robbery while armed with a gun.

As we have said many times, in a case tried without a jury, it is the function of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony. People v. Parker, 120 Ill App2d 71, 256 NE2d 67; People v. Jackson, 95 Ill App2d 28, 237 NE2d 858. We will not substitute our judgment on credibility for that of the trial judge unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. People v. Hoffman, 45 Ill2d 221, 226, 258 NE2d 326; People v. Hampton, 44 Ill2d 41, 45, 253 NE2d 385. After reviewing the record, we conclude that the evidence supports the conviction. Judgment is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE LYONS

text:
    Hartigan Oldsmobile Cadillac, Inc., an Illinois Corporation, Plaintiff-Appellee, v. City of Park Ridge, a Municipal Corporation, Defendant-Appellant, Arthur Scheller, Intervenor-Appellant.
    Gen. No. 53,552.
    First District, Second Division.
    September 29, 1970.

      Albert A. Klest, of Park Ridge, and Arthur Scheller, pro se, of Park Ridge, appellant.
    Gerald M. Chapman, of Chicago, for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Hartigan Oldsmobile Cadillac, Inc. brought an action for a declaratory judgment against the City of Park Ridge seeking to have a certain portion of the zoning ordinance of that municipality declared unconstitutional as applied to its property, and to have another portion of the ordinance likewise declared unconstitutional as being arbitrary and discriminatory in singling out a particular use, automatic car washes, and according it special treatment under a special use technique. Defendant has appealed from a judgment in favor of plaintiff.

Arthur Scheller, an intervening defendant, has also perfected an appeal in which he assigns as error the trial court’s denial of certain of his pretrial motions.

The subject property is located in the northern portion of a block bounded by Northwest Highway on the north, Busse Highway on the south, Morris Avenue on the west, and Meacham Avenue on the east. It is triangular in shape, having frontage on Morris Avenue, Northwest Highway, and Meacham Avenue. West of the subject property, across Morris Avenue, is Hinkley Field, a public park containing three baseball fields, a basketball court, swimming pool, tennis and handball facilities, and general playground area. South of the subject property on the east side of Morris Avenue, are the Hartigan Agency, a municipal garage, and a structure which at the time of trial had been partially destroyed by fire and remained unrepaired. On the west side of Meacham Avenue and south of the Hartigan complex are a fire station, a vacant parcel used for the storage of automobiles, and a dance hall which also fronts on Busse Highway. On the east side of Meacham Avenue between Busse and Northwest Highways are located the Busse Brademan Buick Agency, a hotel, barber shop and real estate office. In addition to the dance hall previously mentioned, a post office annex is located on the north side of Busse Highway between Meacham and Morris Avenues. The south side of Busse Highway is bounded by an embankment upon which runs the Chicago and ■ Northwestern Railroad right of way. Northwest Highway, in the immediate vicinity of the subject property, is developed with retail sales uses.

Plaintiff proposed to erect an automatic car wash upon the subject property, which is classified under chapter 256 of the Park Ridge Zoning Ordinance as “D-D” commercial. Drive-in establishments are not permitted uses in the “D-D” districts although such uses are, with the exception of automatic car washes, permitted in the “D” commercial districts. Automatic car washes are not permitted as a matter of right in any district, but are subjected to a special use technique under section 261-5 of the Park Ridge Zoning Ordinance which provides in part:

In order to properly classify uses, including auto-wash facilities, which because of their unique characteristic cannot be properly classified in a particular district without consideration in each case, of the impact of those uses upon neighboring land and of the public need for the particular use at the particular location, the following regulations shall apply:

The remainder of the section deals with procedural matters with respect to applications for special use permits and limitations which may be imposed attendant to the granting of a special use permit.

The automatic car wash which plaintiff proposed to erect on the subject property would consume 3,600 square feet of the parcel’s 7,900 square foot area. Plaintiff applied for a special use permit as required by the ordinance. Following public hearings by the Plan Commission and Zoning Board, the City Council, the body to which the ordinance reserves the power to pass upon requests for special use permits, denied the request. The instant suit followed, resulting in findings by the trial court that the Zoning Ordinance of Park Ridge, as applied to plaintiff’s property, was invalid, and that section 261-5 was also invalid as an unreasonable exercise of the police power in that it accorded special treatment to a single use. The defendant has challenged each of these findings.

We consider first the defendant’s contention that the trial court erred in finding chapter 256 of the Ordinance unconstitutional as applied to plaintiff’s property insofar as it operates to exclude automatic car wash facilities from the “D-D” district, since no properly justiciable issue would remain should defendant prevail on this issue. Should we find that the exclusion of the proposed use from the “D-D” district is proper, consideration of the constitutionality of section 261-5 would be a futile act since no matter what that determination might be, plaintiff would not be entitled to develop the subject property with the proposed use.

It is the function of the ruling municipal legislative body to classify uses and draw the lines of demarcation between those uses which shall and those which shall not be allowed in particular districts. Legislative judgment in this area will not be interfered with by the courts except to the extent that judicial review is available to ascertain whether the legislative body has exceeded its power by employing classifications which do not bear a substantial relation to the public health, safety, or welfare. Krol v. County of Will, 38 Ill2d 587, 233 NE2d 417 (1968). Thus, it has been repeatedly held that a zoning ordinance is cloaked in a presumption in favor of its validity and the party who attacks it has the burden of proving by clear and convincing evidence that the ordinance, either on its face or as applied, is arbitrary and unreasonable and without substantial relation to the public health, morals, safety, or welfare. Palangio v. City of Chicago, 23 Ill2d 570, 179 NE2d 663 (1962); Zweifel v. City of Peoria, 11 Ill2d 489, 144 NE2d 593 (1957).

Every zoning case must be decided on its own peculiar facts, but certain factors have come to be established as guideposts to be used in determining the constitutionality of zoning ordinances. They are the character of the neighborhood, classification and use of nearby properties, the extent to which property values are diminished by the particular restriction, suitability of the subject property for zoned purposes, and the gain to the public as opposed to the loss to the property owner resulting from the restrictions imposed. Tillitson v. City of Urbana, 29 Ill2d 22, 193 NE2d 1 (1963); LaSalle Nat. Bank v. Village of Palatine, 92 Ill App2d 327, 236 NE2d 1 (1968).

Plaintiff presented two expert witnesses to testify with respect to the value of the subject property, the effect of the proposed use upon neighboring properties, the character of the neighborhood, and the extent to which the public welfare was served by the restriction of which plaintiff complains. The first of these witnesses, John McNamara, a real estate broker and appraiser, testified that the value of the subject property for the storage of automobiles, its present use, was $2 per square foot. It was his further opinion that the value of the subject property, if developed as proposed by plaintiff with an automatic car wash facility, would be $6 per square foot. He also testified however, that the value of the parcel in question would be $6 per square foot if the property were used for any commercial purpose in connection with plaintiff’s operation. Finally, Mr. McNamara testified that development of the parcel in question as proposed by the plaintiff would not have a detrimental effect upon residences located several blocks away on Meacham Avenue.

There was no testimony to the effect that the parcel in question was not suitable for development with a commercial use in connection with plaintiff’s present operation and within the provisions of the applicable zoning ordinance.

Plaintiff’s second expert witness, George H. Kranenberg, a planning and zoning consultant, testified as follows. The “D-D” classification is, in his opinion, properly classified as heavy commercial. He was also of the opinion that an automatic car wash was not a heavier use than others permitted in the district, the only element peculiar to an automatic car wash is that it would generate more traffic than would uses permitted under the ordinance. Finally, he testified that municipalities subject car wash facilities to a special use technique in order to allow them to review the parking and reservoir stacking capabilities of the proposed facility.

Mr. Jack Flapan, president and secretary of the Haverberg Auto Laundry Company, testified for plaintiff with respect to the proposed facility. Included in his testimony were such areas of concern as water and sewer demands, cost, and capacity of the facility.

The evidence presented by defendant need not, in our opinion, be detailed here, as we are not satisfied that plaintiff presented sufficient evidence to sustain its burden of proof. Thus, the presumption in favor of the validity of the ordinance has not been overcome. While it is true that plaintiff offered opinion evidence to the effect that neighboring properties would not be detrimentally affected by the proposed use, and that the value of plaintiff’s property would be enhanced by the proposed development as opposed to its value as presently used, we do not find such evidence sufficient to support the trial court’s finding that the ordinance is unconstitutional insofar as it prohibits erection of an automatic car wash facility on the parcel in question.

Of special significance in this connection is the absence of evidence tending to establish that the subject property is not suitable for any purpose allowed under its present zoning classification. This deficiency is further magnified by the testimony of Mr. McNamara to the effect that the value of the subject property, if developed with any commercial use in connection with plaintiff’s present operation, would be equal to its value if developed with the proposed use. Further in this regard, although not controlling here, it is our opinion that in cases such as the present one the party assailing the validity of a zoning ordinance as applied should be required to establish not only that the property in question is not suitable for zoned purposes, but also that plaintiff’s development of adjacent property is not responsible for such unsuitability.

In view of our finding that plaintiff’s evidence was insufficient to overcome the presumption in favor of the validity of the ordinance insofar as it operates to exclude drive-in facilities from the “D-D” district, other issues raised in this appeal need not be discussed. The issues raised by the intervener with respect to denial of his pretrial motions are, in our opinion, rendered moot by our disposition of the case. We hold that plaintiff has failed to sustain its burden of proof, the presumption in favor of the validity of the ordinance in question stands, and therefore the judgment of the Circuit Court in plaintiff’s favor is reversed.

Judgment reversed.

McCORMICK, P. J. and BURKE, J., concur.