author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY SUMMERS, Defendant-Appellant.
    First District (5th Division)
    No. 79-2396
    Opinion filed September 4, 1981.
    James J. Doherty, Public Defender, of Chicago (Karen A. Popek, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was convicted of murder and sentenced to 14 years to 14 years and a day. On appeal, he contends that the trial court erred in denying motions to quash his warrantless arrest and to suppress statements and evidence, and that he was not proved guilty beyond a reasonable doubt.

A pretrial hearing on defendant’s motion to quash his arrest and to suppress evidence was conducted at which police officer Craig Cegielski testified, in pertinent part, that at about 7 a.m. on September 30,1977, he and his partner, Officer Crescenzo, went to the apartment of the victim to investigate her death; that when they arrived, it appeared that she had been sexually attacked since her nude body was lying face down on the floor with some fecal matter on the small of her back, with evidence in the room of a struggle; that he was told by an evidence technician at the scene that a fingerprint suitable for comparison was found on an empty package of Kool cigarettes found lying on a coffee table near the victim’s body; that one of her two young children said her mother was not home when they went to bed the previous night after watching a television show which ended at 10 p.m.; that at the crime scene, he spoke with defendant and his wife, who told him that they were trying to place the victim’s children in the house of a relative or friend; that later, at the police station, George Turner (the victim’s brother and brother-in-law of defendant) told him that defendant was a friend of the victim and that he had previously been arrested for rape and for attempting to burn down his mother-in-law’s house; that following this conversation defendant’s fingerprints, which were on file with the police department, were taken to the crime lab to be compared with the print found on the cigarette package recovered from the victim’s apartment; that shortly thereafter, he and his partner received a radio message that the print from the package of cigarettes matched one of defendant’s fingerprints, and they went to the residence of defendant’s mother-in-law where defendant was placed under arrest at about 4 p.m. (on September 30); and that neither he nor his partner possessed an arrest warrant.

Officer Cegielski also testified that defendant was advised of his constitutional rights en route to the police station and again in an interview room at the station; that defendant said he had been out drinking with Terry Jackson and Bill Ford; that they arrived home about 2 a.m.; and that he (defendant) stayed home until 7 a.m., when a friend told him of the victim’s death. The officer further testified that Terry Jackson was then interviewed and substantiated defendant’s statement, except she said that after they returned from the tavern, defendant did not stay home but left about 3 a.m. and had not yet returned home when she fell asleep about 4:30 a.m.; that defendant was then shown the keys found in the victim’s apartment and he said that he had never seen them before; that later, defendant freely and voluntarily signed a consent to search form and, at his apartment, the officers recovered a maroon T-shirt which Terry Jackson later identified as the one defendant was wearing that night; and that he (Cegielski) obtained from defendant the shoes and undershorts he was wearing and sent them to the crime lab. The court ruled that there was probable cause for the arrest, and the motion to quash and suppress evidence was denied.

Subsequently, there was a hearing on defendant’s separate motion to suppress statements and evidence which essentially challenged the voluntariness of defendant’s statements following his arrest. Both Cegielski and Crescenzo testified that defendant had been advised of his constitutional rights and had not requested that a lawyer be present; that during the interview, defendant consented to a search of his apartment; that the consent to search form was read to him, which he then signed. Paul Linton, an Assistant State’s Attorney, testified that he also advised defendant of his constitutional rights and questioned him for about one hour. All three witnesses stated that defendant was not handcuffed, that they spoke in normal conversational tones, and that defendant was not threatened or abused in any manner. Defendant presented no witnesses, and the court denied the motion ruling that the consent was voluntary.

At trial, Terry Jackson (first cousin to the victim and to defendant’s wife) testified for the State that on September 29 at 11 p.m., she, defendant, and Billy Ford went to a tavern near defendant’s home where they stayed until 2 a.m.; that as they were walking back to defendant’s apartment, defendant dropped some keys; that one key she saw resembled one of those found at the crime scene; that when she said he had dropped the keys, defendant picked them up; that he was wearing a maroon T-shirt (State’s exhibit No. 20) and “suede-like” shoes (resembling State’s exhibit No. 19); that they arrived at the apartment soon thereafter, and at about 3 a.m. defendant left; that when she went to sleep at about 4 a.m., he had not yet returned; and that the next time she saw him was 7 a.m. on September 30.

Vernon Williams (the victim’s boyfriend) testified for the State that at about 6 a.m. on September 30 he went to the victim’s apartment; that he entered the living room where he found her body lying face down; that the room was in a state of disarray, and there were a couple of loose keys and change on the floor lying near the victim’s body; and that shortly thereafter, when police officers arrived, he went to defendant’s apartment.

Officer Isadore Williams testified that in the early morning of September 30, he arrived at the victim’s apartment building and that, after talking to Vernon Williams outside, he and his partner entered the victim’s living room where they found a nude female body lying face down on the floor in a pool of blood, with a kitchen utensil penetrating her throat.

Officer Thomas Ginelly, a mobile unit technician, testified that he and his partner took about 18 photographs of the crime scene (which were entered into evidence); that they found one key on the floor near the victim’s head and another key on a shelf at the base of the coffee table in the living room; and that fingerprint impressions were found on and lifted from the cellophane wrapping on an opened package of Kool cigarettes found on top of the coffee table.

Officer John Boyle testified that he and his partner went to a gas station, where defendant had worked until one week prior to the victim’s murder, and determined that one of the keys recovered from the crime scene opened the front door of the station; that they later found that the other key recovered fit the front door lock of defendant’s apartment; and that they apprised Officers Crescenzo and Cegielski of their findings.

Officer Crescenzo testified, in pertinent part, that after the arrest defendant told him and his partner, Officer Cegielski, that he had been out drinking the previous night with Terry Jackson and Billy Ford until about 2 a.m. and then returned home, where he stayed until 7 a.m. at which time Vernon Williams informed him of his sister-in-law’s death; that when asked to identify two keys found at the scene of the crime, defendant said he had not seen them before; that after defendant consented to a search of his apartment, a maroon-colored T-shirt (State’s exhibit No. 20) was recovered therefrom; that shortly thereafter, he and his partner told defendant that one of the keys recovered from the crime scene unlocked a gas station door where defendant was previously employed and that the other key opened defendant’s apartment door, but defendant again declared he had never seen the keys before; and that prior to defendant’s transfer to a detention facility, his shoes (State’s exhibit No. 19) and undershorts were taken from him.

Certain testimony from defendant’s first trial (which had resulted in a mistrial) was entered into evidence by stipulation. At the initial trial, Officer Thomas Krupowicz, a certified latent fingerprint examiner, testified that three latent fingerprints lifted from the package of cigarettes found on the coffee table at the scene of the crime matched the print of one of defendant’s fingers, and that he could not tell how long defendant’s prints had been on the package. Dr. Teas, a deputy medical examiner, testified that the cause of death, which occurred sometime between 3 a.m. and 10:57 a.m., was a stab wound. Bernadette Kwack, a microanalyst for the police department, testified that both the victim and defendant had type A blood, although their subgroup factors differed; that she found minute specks of type A human blood on the inside portion of the shoes seized from defendant, but she was unable to determine the subgroup factor of the blood; that traces of blood were found on the maroon T-shirt, but she could not ascertain whether the blood was of human or animal origin; that minute specks of human blood were found on the fly area of defendant’s undershorts, but the amount was insufficient for a determination of its type; that spermatozoa were also found on the undershorts; and that human spermatozoa were found in the victim’s vagina and rectum. Assistant State’s Attorney Paul Linton testified that during his questioning defendant acknowledged that the keys found at the crime scene could have been his. Finally, it was stipulated that Dr. Teas told defendant’s attorney that the time of the victim’s death was between 11 a.m. September 29 and 10:58 a.m. September 30.

Opinion

Defendant first contends that his warrantless arrest should have been quashed because probable cause was lacking. In considering a ruling upon a motion to suppress, a reviewing court may consider any evidence during trial which assists in establishing the legality of the arrest. (People v. Braden (1966), 34 Ill. 2d 516, 216 N.E.2d 808; People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121.) At trial, Officer Crescenzo testified that although the living room of the victim’s apartment was in disarray the remainder of the apartment was fairly neat, and he characterized the condition of the empty cigarette package discovered at the scene of the crime as “crupled.” Additionally, photographs of the crime scene, admitted into evidence at trial, indicate that no apparent damage had been done either to the inside or outside of the steel frame door to the victim’s apartment; that the cigarette package, as well as scattered chess pieces, were on top of a chess board on the coffee table in the victim’s living room; and that the victim’s body was found lying flat on its stomach with legs apart.

We further note that the determination of whether probable cause for an arrest exists in a specific instance depends upon the totality of the facts and circumstances known to the officers when an arrest is made (People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228, cert, denied (1980), U.S__, 66 L. Ed. 2d 467, 101 S. Ct. 564), and it is present if a reasonable and prudent person in possession of the knowledge which has come to the arresting officer would believe that the person to be arrested had committed a crime (People v. Denham (1968), 41 Ill. 2d 1,241 N.E.2d 415, cert, denied (1969), 394 U.S. 1006, 22 L. Ed. 2d 784, 89 S. Ct. 1605). However, in deciding the question of probable cause, we deal with probabilities, the factual and practical considerations of everyday life on which reasonable persons, not legal technicians, act (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280), and, in making such determination, hearsay evidence may be considered (People v. Sakalas). Moreover, the court’s finding of probable cause will not be disturbed unless manifestly erroneous. Clay.

Defendant maintains that the fingerprint of an accused found at the crime scene is insufficient of itself to sustain a finding of probable cause unless the fingerprint could have been impressed only at the time the crime was committed. We note, however, that in People v. Rhodes (1981), 85 Ill. 2d 241, 249, rev’g People v. Van Zant (1980), 84 Ill. App. 3d 355, 405 N.E.2d 881, the court stated:

“In order to sustain a conviction solely on fingerprint evidence, fingerprints corresponding to the fingerprints of the defendant must have been found in the immediate vicinity of the crime under such circumstances as to establish beyond a reasonable doubt that the fingerprints were impressed at the time the crime was committed.”

In Rhodes, a defendant was convicted of burglary solely on the basis of evidence of a latent fingerprint, matching his, which was lifted from a clock radio. The complainant testified that the radio rested on a chair in his bedroom prior to the break-in and stood on the kitchen table after the intrusion. Despite the absence of evidence establishing the age of the fingerprint or proof that the radio ever left the complainant’s home, the supreme court reversed the appellate court and reinstated defendant’s conviction, concluding that “the evidence reveals that the defendant’s fingerprint left on the clock radio could only have been impressed at the time of the commission of the offense.” 85 Ill. 2d 241, 251.

Turning to the instant case and bearing in mind that the evidence required to establish probable cause is less than is necessary to prove guilt beyond a reasonable doubt (People v. Williams (1979), 79 Ill. App. 3d 817, 398 N.E.2d 1099), we believe Rhodes is analogous. Here, the arresting officers knew that defendant’s fingerprint was impressed in the immediate vicinity of the crime on a portable object — a cigarette package. It appears to us that they could have drawn a reasonable inference that the fingerprint was impressed recently, because (a) an empty and crumpled cigarette package would not have remained long in an apartment which, other than the state of disarray in the living room, was relatively neat; and (b) the package found among some toppled chess pieces on top of the playing area of a chess board on the coffee table in the living room could have been there only a short time if chess was played. Thus, under the Rhodes reasoning, it appears that the officers could have formed a reasonable belief that defendant committed the offense, and thus there was probable cause to arrest.

In any event, fingerprint evidence did not form the sole basis for probable cause. Prior to the arrest, the arresting officers knew that there was no damage to the door of the victim’s apartment and thus could infer that entry thereto was not forced. This inference, coupled with the officers’ knowledge that the victim arrived home after 10 p.m. and was killed before 7 a.m. the next day, indicates that the offender was someone known to the victim. Additionally, the officers knew that when the victim’s body was discovered it was nude, lying face down on the floor with legs apart, and that there was fecal matter on the small of the victim’s back. From those facts, they reasonably could conclude that there had been anal penetration of the victim, indicating that her assailant was male. Moreover, the officers were apprised by the victim’s brother that defendant was a friend of his sister, which information was corroborated by the officers’ own earlier encounter with defendant when he and his wife stated that they were trying to place the victim’s children in the home of a friend or relative. Two others, the victim’s former husband and her boyfriend, were also suspects, but their whereabouts had been accounted for that evening by the police. Therefore, on the basis of the totality of the facts and circumstances known to the arresting officers, we cannot say that the trial court’s finding was manifestly erroneous.

We now turn to defendant’s contention that his guilt was not proved beyond a reasonable doubt because “the totally circumstantial evidence was insufficient.” We disagree.

Where a conviction rests solely upon circumstantial evidence, as here, the guilt of the accused must be so thoroughly established as to exclude every reasonable hypothesis consistent with defendant’s innocence. (People v. Garrett (1975), 62 Ill. 2d 151, 339 N.E.2d 753.) However, the State need not prove guilt beyond any possibility of a doubt (People v. Murdock (1971), 48 Ill. 2d 362, 270 N.E.2d 21, cert, denied (1971), 404 U.S. 957, 30 L. Ed. 2d 274,92 S. Ct. 323), nor must each link of the chain of circumstances of the State’s case establish defendant’s guilt beyond a reasonable doubt (People v. Marino (1970), 44 Ill. 2d 562, 256 N.E.2d 770). Rather, it is sufficient if all of the evidence, taken as a whole, satisfies the trier of fact beyond a reasonable doubt of the accused’s guilt. People v. Williams (1977), 66 Ill. 2d 478, 363 N.E.2d 801.

Defendant essentially attempts to discredit the State’s case by attacking the probative value of each piece of evidence in isolation from the other evidence. However, it appears that the proof, taken as a whole, is sufficient to establish defendant’s guilt beyond a reasonable doubt. First, defendant’s fingerprints weré impressed on a crumpled package of cigarettes found on a chess board located on the coffee table in the victim’s living room near the victim’s body. In view of the crumpled condition of the package and the otherwise neat condition of the apartment, the court reasonably could conclude that the package bad recently been left in that location. Second, two keys were discovered near the victim’s body — one of which fit the lock to the door to defendant’s apartment and the other being the key to the front door of a gas station where defendant was employed until about one week before the victim’s death. Terry Jackson testified that at around 2 a.m. defendant dropped a couple of keys as she, defendant, and Billy Ford were walking from a tavern to defendant’s apartment, and that the keys were similar in color to those found at the crime scene. Moreover, according to Assistant State’s Attorney Linton, defendant admitted to him that the keys found near the victim’s body could have been his. Although Officer Crescenzo testified that he had been present during Linton’s entire interrogation of defendant and that he did not hear such a statement, it is significant in this regard that the trier of fact is free to accept the testimony of one prosecution witness over the conflicting testimony of another. (See People v. Rosa (1981), 93 Ill. App. 3d 1010, 418 N.E.2d 124.) Third, the laboratory analysis of certain items of defendant’s clothing further linked him to the crime. As regards the shoes defendant was wearing when he was arrested — which Jackson testified resembled those he was wearing when they were out drinking — laboratory tests revealed the presence of type A human blood (the blood type of both defendant and the victim) on the inside portion. The maroon T-shirt which, according to Jackson, defendant was wearing the early morning in question, was found to have traces of blood thereon. In addition, according to laboratory analysis, specks of human blood were found in the fly area of the undershorts defendant was wearing when he was arrested, and spermatozoa were also found on the shorts. This scientific evidence is especially incriminating in view of the testimony of Bernadette Kwack that spermatozoa were found in the victim’s vagina and rectum and the fact that the victim’s body was discovered in a pool of blood. Fourth, based upon photographs of the door to the victim’s apartment showing no signs of damage thereto, the court reasonably could infer that entry was not forced and thus could also conclude that the assailant was known by the victim. Fifth, defendant had the opportunity to commit the crime. It appears that the victim’s death took place after 11 a.m. September 29 and, according to Vernon Williams’ testimony, before 6 a.m. September 30. Jackson testified that defendant left his apartment at 3 a.m. and had not returned by 4 a.m., which refuted the alibi defendant gave police officers — that he returned home from drinking at 2 a.m. and did not leave until 7 a.m.

For the foregoing reasons, the judgment appealed from is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE LORENZ

license: Public Domain

text:
      In re APPLICATION OF COOK COUNTY COLLECTOR.—(RON OHR, Petitioner-Appellee, v. PRAIRIE MATERIAL SALES, INC., Objector-Appellant.)
    First District (5th Division)
    No. 80-579
    Opinion filed September 4,1981.
    Richard M. Kates, of Chicago, for appellant.
    Swanson, Ross, Hanfling & Block, of Chicago (Frederick S. Stein, of counsel), for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court;

Petitioner Ron Ohr purchased two vacant lots at a tax sale and, after the redemption period expired, petitioned for tax deeds. Respondent Prairie Material Sales, Inc., objected to the petition on the grounds that petitioner failed to comply with the requirements of sections 263 and 266 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, pars. 744, 747). The trial court overruled the objections and ordered the county clerk to issue the tax deeds. The dispositive issue on appeal is whether the notices sent by petitioner are fatally defective under sections 263 and 266.

The material facts can be briefly stated. The vacant lots are in an unimproved part of the Village of Bridgeview. However, the notices sent by petitioner mistakenly identify the property as being in the bordering municipality of Hickory Hills.

The trial court expressly found that these notices complied with the requirements of the Revenue Act and, now, petitioner argues that this finding should be upheld on the grounds that it is not contrary to the manifest weight of the evidence. We find this argument unpersuasive because the issue in this case is a question of law, and not fact. Consequently our scope of review is independent rather than deferential. Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(1).

It is undisputed that a petitioner for a tax deed must give, to owners, occupants and other persons interested in the property, written notice of both the petition and the date when the redemption period will expire. (Ill. Rev. Stat. 1979, ch. 120, pars. 744, 747.) These statutory provisions implement the notice requirements of article IX, section 8(b) of the 1970 Illinois Constitution. Compliance with these provisions is a condition precedent to the issuance of a tax deed. Ill. Rev. Stat. 1979, ch. 120, par. 744.

Section 263 includes a sample notice form. The relevant part of the model form reads as follows:

“THIS PROPERTY HAS BEEN SOLD FOR DELINQUENT TAXES

Property located at.........................................

Legal Description or Permanent Index No.....................

According to the directions, this form, “shall be * * * completely filled in.” (Ill. Rev. Stat. 1979, ch. 120, par. 744.) The notices sent by petitioner include the correct permanent index numbers for the lots, but, despite the fact that the property is located in Bridgeview, the notices state that the lots are located in Hickory Hills.

Petitioner relies on People v. Orth (1961), 21 Ill. 2d 205, 211, 171 N.E.2d 626, 629, for the proposition that “absolute perfection is not required in a tax foreclosure proceeding or in a petition for a tax deed e * V’ In essence, petitioner argues that he has substantially complied with the requirements of the Revenue Act and that substantial compliance is sufficient to entitle him to tax deeds. But, under an amendment which became effective in 1970 (Pub. Act. 76-2329), the General Assembly provided that, “The court shall insist on strict compliance with the provisions of Section 263 6 * (Ill. Rev. Stat. 1979, ch. 120, par. 747.) Thus the legislature clearly manifested its intention that the provisions of section 263 are to be construed as mandatory rather than being merely directory. And, in a case which involved another section of the Revenue Act, the supreme court held that a publication requirement designed for the benefit and protection of citizens was a mandatory provision. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332.) As a mandatory statute, strict compliance was required. Andrews.

In light of the legislature’s clear expression of intent, and the fact that these notice provisions are designed for the benefit of citizens and to protect their property from sacrifice, we conclude that the provisions of section 263 are mandatory requirements which must be strictly complied with.

Petitioner argues that respondent has not established that it was misled by the defective notices. But placing the burden on respondent to show that it was not prejudiced would mean that petitioner could obtain a tax deed without strictly complying with the statutory notice requirements. Clearly, this was not what the legislature intended. The provision for strict compliance shows that the legislature recognized the great injury that can result from the forfeiture of property rights. And it is relevant to note that property is often purchased at a tax sale for only a small fraction of its value.

These factors lead us to conclude that a petitioner for a tax deed must strictly comply with the notice requirements of sections 263 and 266 without regard to whether any owner, occupant or other interested party was misled by a defective notice. In short, prejudice to respondent is assumed. Since the notices in this case placed the property in the wrong municipality, we find that they failed to strictly comply with the provisions of section 263.

Next, petitioner refers us to Garrick v. Chamberlain (1880), 97 Ill. 620, 638, where a notice was considered valid when it described property as “lot 5, lot 23, in Carpenter’s addition” instead of “lot 5, in Block 23, in Carpenter’s addition.” (Emphasis added.) However, that case does not aid petitioner because, unlike the defective notices in this case, we find that the mistake in Garrick was readily apparent on the face of the notice. When a typographical or a scrivener’s error is readily apparent on the face of a notice, the error does not necessarily mean that the notice fails to strictly comply with the statutory requirements.

Additionally, petitioner refers us to In re Application of County Treasurer (1980), 92 Ill. App. 3d 603, 416 N.E.2d 25. We find Mergili inapplicable because the court stated that its resolution of that case did not depend upon deciding whether to construe section 263 as either mandatory or directory. Mergili stands for the proposition that compliance with section 263, whether strict dr substantial, does not require a petitioner to supply information that does not exist. We agree. But this does not mean that a section 263 notice complies with the statute if the information actually given is incorrect. That is the fatal flaw in the notices in this case.

For the preceding reasons we conclude that petitioner was not entitled to tax deeds, and the judgment of the circuit court must be reversed.

Reversed.

SULLIVAN, P. J„ and WILSON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. UZEE DOUGLAS, Defendant-Appellee.
    First District (5th Division)
    No. 80-1498
    Opinion filed September 4,1981.

      Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Joel A. Stein, and Thomas G. Diciaani, Assistant State’s Attorneys, of counsel), for the People.
    Joseph A. Ettinger and Rick M. Schoenfield, both of Joseph A. Ettinger & Associates, Ltd., of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

The State appeals from an order which granted a renewed motion to suppress. The initial motion had already been denied by another judge and the issue presented is whether, under the facts of this case, defendant was precluded from making the second motion. We reverse. The material facts follow.

Defendant, Uzee Douglas, was charged with possession of controlled substances and, at a preliminary hearing, his first attorney made a motion to suppress the State’s physical evidence on the grounds that it had been illegally seized. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12.) This motion was denied and, after the case was reassigned for trial, defendant’s new attorney renewed the motion to suppress the evidence. The State objected that defendant was precluded from relitigating the first judge’s order. Despite this objection, the second judge held an evidentiary hearing and granted the motion.

The procedure for a motion to suppress illegally seized evidence is established by section 114 — 12 of the Code of Criminal Procedure. Before it was amended by Public Act 76-1096 (effective 1969), section 114 — 12(d) stated that, “The motion shall be made only before a court with jurisdiction to try the offense and the motion may be renewed if the trial takes place before a judge other than the one who heard the motion.” (Ill. Rev. Stat. 1967, ch. 38, par. 114 — 12(d).) Thus, the second or renewed motion in this case would have been proper under the original statute. However, the amendatory act deleted the provision for a renewed motion, and section (d) now provides that, “The motion shall be made only before a court with jurisdiction to try the offense.” Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(d).

It is clear that by amending section 114 — 12(d) the General Assembly intended to preclude relitigation of motions to suppress illegally seized evidence. Therefore we conclude that, in this case, the statute barred the second judge from rehearing a motion to suppress which had already been denied by another judge.

Of course, this does not mean that fundamental fairness would not require a second judge to hear a renewed motion to suppress when, for example, a defendant seeks the second hearing so that he can introduce evidence which was unknown or unavailable at the first hearing. (See, e.g., People v. Colletti (1978), 61 Ill. App. 3d 289, 377 N.E.2d 1276.) But, in this case, the record shows that the second hearing was not required by considerations of fundamental fairness. At the first hearing, the arresting officer testified that he acted on information supplied by an anonymous informer. The “new evidence” elicited at the second hearing merely consisted of additional questioning of the same officer about the informer. In fact, the officer was the only witness at the second hearing. Since the first defense attorney was aware of the officer’s testimony about an informer, and he exercised his opportunity to cross-examine the officer about the informer, fundamental fairness does not require that defendant and his new attorney get an opportunity to dig a little deeper into the same area.

Another defense argument is based on the inconsistent findings made by the trial judges. According to defendant, “It would be fundamentally unfair to allow the fruits of the search to be admissible in light of the [second judge’s] factual determination that the officer was lying.” We disagree. Finality is an important component of our jurisprudence, and, under the amended statute only the first order is entitled to stand. Reasonable people can often reach differing factual conclusions, and the inconsistent findings in this case only highlight the wisdom of a statute precluding unceasing relitigation of factual issues which have already been decided. See Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189.

Defendant also refers us to People v. McCarty (1973), 11 Ill. App. 3d 421, 296 N.E.2d 862, where the court held, without referring to section 114 — 12(d), that a trial judge was not bound by another judge’s prior ruling denying a motion to suppress. Since McCarty did not consider the effect of the amendment to section 114 — 12(d), we respectfully decline to follow the holding of that case.

Next, defendant argues that any error in granting the second motion was harmless on the grounds that it was error for the first judge to deny the initial motion. This argument actually seeks to have us review an order which is not yet reviewable (People v. Kepi (1978), 65 Ill. App. 3d 327,382 N.E.2d 642) and which may never be reviewable if defendant is acquitted.

For the preceding reasons, the trial court’s suppression order is reversed and this cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

SULLIVAN, P. J., and MEJDA, J., concur.


author: Mr PRESIDING JUSTICE SULLIVAN

text:
    JOE SCOTT et al., Plaintiffs-Appellants, v. AMBASSADOR INSURANCE CO., Defendant-Appellee.
    First District (5th Division)
    No. 80-2277
    Opinion filed September 4,1981.
    Joseph L. Dombrowski, of Chicago, for appellants.
    Pollina, Critz & Phelan, of ■ Northbrook, and Lord, Bissell & Brook, of Chicago (Dennis R. Pollina and Hugh C. Griffin, of counsel), for appellee.
   Mr PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiffs appeal from the dismissal of count III of their complaint which purported to state a class action for alleged tortious breach of contract with plaintiffs and other members of the class.

In pertinent, count III alleges that plaintiffs are representatives of a class of people who purchased automobile liability insurance policies from defendant which included uninsured motorists coverage; that they “have been unable to amicably settle uninsured motorists claims with defendant”; that defendant “through a continuous course of deliberate, wilful and wanton procrastination” refused to consider the claims of plaintiffs and class members “without a lawsuit being filed to compel settlement”; that defendant wilfully and wantonly breached its duty to act in good faith and to deal fairly with the plaintiffs and class members; that, as a result, plaintiffs and the class members were required to retain the services of attorneys to recover under their policies; and that they were damaged in the amount of the fees paid to those attorneys for which they asked judgment. A motion to dismiss count III was granted in an order which includes language making it appealable under Supreme Court Rule 304(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)), and this appeal followed.

Opinion

The sole issue, as stated by the parties, is whether the four prerequisites to a class action were sufficiently set forth in count III to withstand a motion to dismiss. The prerequisites, as provided in section 57.2(a) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.2(a)), are “(1) The class is so numerous that joinder of all members is impracticable. (2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members. (3) The representative parties will fairly and adequately protect the interest of the class. (4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.”

A motion to dismiss as true all facts well pleaded, together with reasonable inferences drawn from those facts (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538), but only for the purpose of determining whether as a matter of law those facts sufficiently state a claim upon which relief may be granted (O’Fallon Development Co. v. Ring (1967), 37 Ill. 2d 84, 224 N.E.2d 782), and conclusions unsupported by allegations of specific fact are not admitted (Lucchetti v. Lucchetti (1980), 82 Ill. App. 3d 630, 402 N.E.2d 854).

Upon appeal from a dismissal for failure to state the proper grounds for a class action, we are first required to determine whether plaintiffs’ complaint stated a valid cause of action. (Landesman v. General Motors Corp. (1978), 72 Ill. 2d 44, 377 N.E.2d 813.) As stated by the court in Landesman:

“The requirement that the named representatives of the putative class possess a valid cause of action is subsumed in at least two of the aforementioned elements (which do not materially differ in this respect from the common law elements). Element ‘(2)’ — the requirement that common questions of law or fact predominate — obviously assumes that the complaint states facts which, if proved, would present questions of fact for the trier of fact. Element ‘(3)’ — the requirement that the named ‘parties’ be adequate representatives of the class — also assumes that, as ‘parties,’ they possess a valid cause of action.” 72 Ill. 2d 44, 48, 377 N.E.2d 813, 814.

In substance, it is alleged in count III that defendant breached a duty to act in good faith towards plaintiffs and the other class members by refusing to consider settlement of their uninsured motorists claims, and they were thus required to retain attorneys to effect a recovery of those claims. In this regard, we note that the insurance policy issued to plaintiffs is not included in the record, but the uninsured motorists endorsement there is set forth in their complaint as follows:

“The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this endorsement, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company, or if they fail to agree, by arbitration.”

It is clear that this endorsement of itself creates no duty to settle any claims and that it requires payment only when an insured is legally entitled to recover damages from the owner or operator of an uninsured automobile for “bodily injuries” sustained in an accident involving the uninsured vehicle. Here, there is no assertion in count III that plaintiffs or the class members were legally entitled to damages from the owner or operator of an uninsured automobile. Moreover, the endorsement assumes the possibility that a settlement may not be effected by providing that the determination of legal entitlement to damages and the amount thereof was to be made by an agreement of the parties and, upon their failure to agree, by arbitration. While it might be inferred from the allegation of count III that the parties could not make such a determination, there is no allegation that defendant refused to participate in arbitration proceedings. Indeed, no reference to arbitration is made in count III or elsewhere in the complaint.

In the absence of any allegation that plaintiffs and the other class members were legally entitled to damages from the owner or operator of an uninsured automobile or that defendant had refused to participate in arbitration proceedings, plaintiffs and the class members have stated no cause of action against defendant.

Turning then to the four prerequisites to a class action, we initially see that defendant does not maintain that the first — so-called “numerosity” requirement — is not adequately set forth in count III. Concerning prerequisite (2), “the predominate common question of fact or law” requirement, we note the statement of the court in Goetz v. Village of Hoffman Estates (1978), 62 Ill. App. 3d 233, 236, 378 N.E.2d 1276,1279, that “[satisfaction of this prerequisite necessitates a showing that successful adjudication of the purported class representatives’ individual claims will establish a right of recovery in other class members.” (See also Barton Chemical Corp. v. Hertz Corp. (1977), 52 Ill. App. 3d 214, 367 N.E.2d 398.) In the case before us, adjudication of the named plaintiffs’ claim would not establish a right to recovery in any of the other purported class members. This is evident from the necessity of making individual factual determinations as to whether each class member was “legally entitled” to damages from an uninsured motorist for bodily injuries sustained. This entails the resolution of a number of questions which, in turn, would depend upon the facts and circumstances of each case, such as (a) negligence and causation; (b) the extent of the bodily injuries and the reasonableness of expenses resulting therefrom; (c) whether each class member had provided all necessary information as required by their policies of insurance; and (d) whether an attorney was in fact required to be retained by each class member. In view thereof, we think it clear that there is no predominate question of law or fact here, and thus prerequisite (2) was not satisfied.

In support of their position, plaintiffs refer us to Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634, Fiorito v. Jones (1968), 39 Ill. 2d 531, 236 N.E.2d 698, and Harrison Sheet Steel Co. v. Lyons (1959), 15 Ill. 2d 532, 155 N.E.2d 595 — cases in which the maintenance of suits as class actions was sustained despite the presence of specific issues affecting individual class members. This court, however, in Morrissy v. Eli Lilly & Co. (1979), 76 Ill. App. 3d 753, 394 N.E.2d 1369, recently discussed those cases in its review of a trial court’s denial of certification of a class consisting of daughters of women who ingested the drug DES during pregnancy and were allegedly injured as a result thereof. In concluding that the action could not be maintained as a class action because individual determinations of proximate cause predominated over common questions of fact or law, the court stated:

“In Steinberg to be resolved on an individual class member basis were straightforward questions of fee payment and reliance. In complex accounting evidence of tax payment, amount of payment and tax absorption by the taxpayer were the accessory individual issues in Fiorito. * * * The questions of hypothetical, minor variations were found insufficient grounds to deny a class action in Harrison. In contraposition to the minimal individual issues that existed in the foregoing cases is the amplíate array of causative, contributive or influencive factors indentified by defendants in the case at bar, which must be decided as to each individual member of the proposed classes in determining proximate cause, compelling us to conclude that, contrary to section 57.2(a)(2), the questions of fact or law affecting the individual members of the proposed classes would indeed predominate over questions of fact or law common to the class. A decision sustaining plaintiff’s right to medical management damages by virtue of her mother’s ingestion of DES would not establish the right of any other purported class member to a similar remedy.” (76 Ill. App. 3d 753, 762, 394 N.E.2d 1369, 1376.)

Here also, as stated above, significant individual issues predominate since significant separate determinations must be made as to each class member and, accordingly, we find that Steinberg, Fiorito, and Harrison are not applicable here.

For the reasons stated, we affirm the judgment dismissing count III.

Affirmed.

LORENZ and MEJDA, JJ., concur.

       No question of entitlement to attorney’s fees as damages is raised by defendant and, in view of our disposition of this appeal, it will not be necessary to consider it. See section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1977, ch. 73, par. 767), which provides for an award of attorney’s fees as taxable costs where the conduct of an insured is vexatious and unreasonable; see also Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368,413 N.E.2d 47; Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373.


author: Mr. JUSTICE PERLIN

text:
    CLYDE SAVINGS & LOAN ASSOCIATION, Plaintiff and Counterdefendant-Appellee, v. THE MAY DEPARTMENT STORES et al., Defendants.—(ERNEST OECHSLIN, JR., Defendant and Counterplaintiff-Appellant.)
    First District (2nd Division)
    No. 80-2483
    Opinion filed September 8,1981.
    R. Marlin Smith and Ross, Hardies, O’Keefe, Rabcock & Parsons, both of Chicago, for appellant.

      Howard M. Hoffman, Ira Gould, and Holleb, Gerstein & Glass, Ltd., all of Chicago, for appellee.
   Mr. JUSTICE PERLIN

delivered the opinion of the court:

This appeal arises solely on the pleadings. Defendant, Ernest Oechslin, Jr. (Oechslin), contends that, after he had filed a counterclaim and without his consent, the trial court in violation of section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52) granted plaintiff, Clyde Savings & Loan Association (Clyde), leave to “withdraw its complaint.” Clyde maintains that it moved to withdraw its complaint because the action had become moot. For the reasons set forth herein, we conclude that the action was moot and affirm the order of the trial court.

The relevant facts are undisputed. Oechslin owned a 12-acre undivided parcel of real estate in North Riverside, Illinois. In 1969 Oechslin sold approximately four of the 12 acres to Clyde Savings & Loan Association, retaining a “private driveway easement” over the Clyde property. The Clyde property was improved with a seven-story office building, parking lot and underground “drive-in teller station.” Prior to the sale of the Clyde property and until the time of the instant litigation, Oechslin used the eight-acre parcel he retained as a wholesale nursery and greenhouse.

In 1978 Oechslin entered into a contract to sell his eight acre parcel to May Department Stores, Inc. (May). The May company proposed to develop the property as a Venture Department Store (Venture), and its contract with Oechslin was contingent upon May/Venture’s ability to obtain from the Village of North Riverside rezoning of the tract for use as a retail shopping center. In its rezoning application May/Venture asserted its intention to use the easement as one of two major ingress and egress routes to the Venture site.

On August 3, 1978, before the zoning hearing began, Clyde filed a complaint seeking to enjoin Oechslin’s and May/Venture’s proposed use of the easement and also requesting a declaratory judgment that such use would constitute an unlawful overburdening of the easement. In its prayer for relief Clyde also asked the trial court to declare that use of the “private driveway easement” was restricted to traffic of a nature and volume which existed prior to the creation of the easement. Clyde asked further for a declaration that any change in usage could be only for traffic attendant a secondary entrance to the Oechslin property as improved with office buildings.

On September 8, 1978, Oechslin and May/Venture jointly filed an answer and two specifically designated counterclaims. Oechslin and May/Venture maintained that the easement agreement did not contain the limitations alleged in Clyde’s complaint and asked for judgment in their favor.

During pendency of the suit the zoning petition of Oechslin and May/Venture was denied. On January 24,1980, the trial court granted the motion of May/Venture to dismiss them from the case, as their contract with Oechslin had been terminated. Oechslin filed a motion for summary judgment on March 3,1980.

On June 9, 1980, Clyde filed a “motion to terminate litigation” pursuant to section 45(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45(4)), alleging that the action had become moot. On the same day Clyde moved to amend its complaint by deleting that part of the prayer for relief in which it had asked the trial court to declare that use of the “private driveway easement” was restricted. On June 12 the trial court granted Clyde’s motion to amend its complaint, whereupon Oechslin moved the court to strike Clyde’s amendment.

On June 13,1980, Clyde filed a motion to withdraw its complaint. In his memorandum of June 20 Oechslin opposed both Clyde’s motion to “terminate litigation” and its motion to “withdraw its complaint.” On June 23 the trial court granted Clyde’s motion to withdraw its complaint, stating that such withdrawal would not affect the pendency of Oechslin’s counterclaims. On June 30 Oechslin moved the court to reconsider its order permitting the withdrawal of Clyde’s complaint. Oechslin’s motion was denied “with no just reason to delay enforcement or appeal,” and he appeals from that order.

Clyde’s complaint was filed pursuant to the declaratory judgment act (Ill. Rev. Stat. 1979, ch. 110, par. 57.1), which provides in part:

“(1) No action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any * * * contract or other written instrument, and a declaration of the rights of the parties interested. * e 6 The courts shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would not terminate the controversy or some part thereof, giving rise to the proceeding.” (Emphasis added.)

“Actual controversy” in the context of the statute requires a showing that the underlying issues of the case are not moot or premature. A court is not required to pass judgment on mere abstract propositions of law, to render an advisory opinion or to give legal advice as to future events. (Midwest Petroleum Marketers Association v. City of Chicago (1980), 82 Ill. App. 3d 494, 499, 402 N.E.2d 709; Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 362 N.E.2d 298; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443,389 N.E.2d 529.) Moreover, the proviso that the court shall refuse entry of a declaratory judgment unless it will result in termination of “the controversy or some part thereof” emphasizes the fact that the declaratory judgment procedure is not intended to permit litigation of moot or hypothetical cases. Ill. Ann. Stat., ch. 110, par. 57.1, Historical and Practice Notes, at 130 (Smith-Hurd 1968).

The issue in an action seeking declaratory relief is whether, considering all the circumstances, there is a substantial controversy between the parties having adverse legal interests of sufficient immediacy and reality to warrant issuance of declaratory judgment. If a complaint for declaratory judgment fails to show a controversy exists, or if the question involved is moot, the suit should be dismissed on motion. Wood v. School District No. 65 (1974), 18 Ill. App. 3d 33, 36, 309 N.E.2d 408; Burgard v. Mascoutah Lumber Co. (1955), 6 Ill. App. 2d 210, 127 N.E.2d 464.

In the instant case Clyde maintains that the dismissal of May/Ven ture as defendants rendered moot the controversy pleaded in Clyde’s complaint. Clyde states that it challenged only the right of May/Venture to overburden the easement and that “when the May/Venture threat was extinguished, the dispute was likewise extinguished.”

Oechslin argues that the dispute was not in fact extinguished because in its original complaint for declaratory judgment Clyde had alleged that the “private driveway easement” was restricted to traffic of a nature and volume which existed prior to the creation of the easement, and further that any change in usage would be only for traffic attendant a secondary entrance to Oechslin’s property as improved with office buildings. Oechslin contends that the agreement contained no such restrictions, and therefore the parties are still at issue.

Oechslin cites the case of A. S. & W. Club v. Drobnick (1962), 26 Ill. 2d 521, 187 N.E.2d 247, for the proposition that an actual controversy is presented when parties take adverse positions with respect to the meaning of a real estate agreement. He also offers the case of Trossman v. Trossman (1960), 24 Ill. App. 2d 521, 531-32, 165 N.E.2d 368, wherein the court stated that “the mere existence of a cloud, denial of a right * * * the existence of conflicting claims * * * may constitute the operative facts entitling a party to declaratory relief.”

The cases cited by Oechslin are factually distinguishable from the instant case. In A. S. & W. Club the plaintiff, a grantee of realty under a deed from the defendants, brought a declaratory judgment action for construction of certain provisions in the deed. The complaint alleged that the plaintiff proposed to convey the property to a third party and that the defendants claimed the deed “restricted” such a sale and required the plaintiff to construct a clubhouse on the property. On appeal the defendants argued that the complaint did not sufficiently allege a controversy and thus failed to state a case for declaratory relief. The Illinois Supreme Court found that “the dispute does not relate to a hypothetical case but is clearly an actual controversy calling for an adjudication of present rights.” A.S. ir W. Club, at 524.

In the case at bar the potential buyer of the property was dismissed from the action, and the record does not reveal a present proposal by Oechslin to convey the property to another party. Unlike A.S. & W. Club there is no imminent buyer or proposed use for the Oechslin property, and thus any dispute as to the proper interpretation of the easement agreement would necessarily be predicated on a hypothetical case.

In the Trossman case the plaintiff brought suit against his wife seeking to establish the validity of an antenuptial agreement. The complaint alleged that the wife believed the agreement to be invalid and that in the event she was predeceased by her husband, she would claim a dower and intestate share in his estate. She moved to dismiss the action on the ground that any injury to the plaintiff was purely speculative. Reversing the trial court’s dismissal of the action, the appellate court held that the controversy was neither moot nor hypothetical. The death of the husband and the disposal of his estate was inevitable, making imminent litigation as to the meaning of the agreement.

In the instant case the sale of the Oechslin property is not inevitable. There is no proposed buyer for the property, nor does it appear that Oechslin is presently negotiating with a buyer. This court will not engage in predictions as to whether a potential buyer will seek to use the Oechslin property in a manner which will overburden the easement. It is the highly speculative nature of this case which differentiates it from cases held to be not moot.

Oechslin also asks this court to consider the case of Kern v. Chicago & Eastern Illinois R.R. Co. (1963), 44 Ill. App. 2d 468, 195 N.E.2d 197. In Kern the plaintiffs, a class of stockholders, brought suit for declaratory judgment against the defendant corporation alleging that the company had without authority adopted a bylaw that would dilute the stockholders’ voting rights. Two days after institution of the lawsuit, the defendants revoked the offending bylaw. The defendants contended that such action rendered the case moot. On appeal they argued at length that the bylaw in question was valid, and at the same time they also argued that the case was moot since the bylaw had been revoked. Nearly half of the defendants’ 75 page brief and a substantial portion of their oral argument was devoted to the legality and the desirability of the bylaw they had previously revoked. Based on their continued assertion of the validity of the bylaw and the fact that they had revoked it only two days after the lawsuit was instituted, the appellate court concluded that it was the defendants’ intent at some opportune time to “recreate the condition as it existed at the time the litigation was commenced.” (Kern, at 477.) The Kern court held, therefore, that the case was not moot,

In the instant case Clyde maintains that the dispute is moot. Clyde has abandoned its contention that the easement agreement should be subject to the restrictions set forth in its original complaint. Unlike the Kern case, the record in the case at bar does not reveal an intent by Clyde to recreate the dispute as it existed at the time litigation was commenced. In fact, in its brief on appeal, Clyde stated that “it is quite possible that Oechslin would develop the property without any objections from Clyde.”

Clyde’s motion to withdraw its complaint, though improperly styled, was equivalent to a motion to voluntarily dismiss its action (Ill. Rev. Stat. 1979, ch. 110, par. 52). Under the Civil Practice Act a plaintiff may not voluntarily dismiss its action unless it first obtains the consent of any defendant who has previously filed a counterclaim.

The purpose of section 52 of the Civil Practice Act is to prevent a voluntary dismissal where without his consent such dismissal would be unfair or unjust to a defendant. (Juen v. Juen (1973), 12 Ill. App. 3d 284, 297 N.E.2d 633; In re Marriage of Weiss (1980), 87 Ill. App. 3d 643, 409 N.E.2d 329.) Where, as in the case at bar, a controversy has become moot, however, voluntary dismissal by plaintiff would not prejudice the defendant.

Clyde’s motion apprised the trial court that the action had become moot. Thereafter the trial court’s order permitting Clyde to withdraw its complaint did not prejudice Oechslin nor affect the pendency of his counterclaims and cannot, therefore, be deemed error.

The order of the circuit court of Cook County is affirmed.

HARTMAN, P. J., and DOWNING, J., concur.

       Section 52 is the only section under which a plaintiff may voluntarily dismiss its action. This section provides that:
      “(1) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action * * " by order filed in the cause. ° ° ° After a counterclaim has been pleaded by a defendant, no dismissal may be had as to him except by his consent." (Emphasis added.) Ill. Rev. Stat. 1979, ch. 110, par. 52(1).
      The Civil Practice Act makes no provision for “withdrawal of a complaint.”

       Although the trial court did not specifically set forth its basis for allowing Clyde to withdraw the complaint, it would appear from the memoranda filed by Clyde and included in the record, that the trial court doubtless determined the action to be moot.

       The first designated counterclaim asserts that in designing and constructing its parking lot and exit ramp from the drive-in teller station, Clyde obstructed and interfered with Oechslin’s use of the easement. Oechslin also maintains that Clyde has wrongfully constructed an “access aisle as an integral part of its parking lot” over the easement, instead of a driveway as agreed upon by the parties.
      The second counterclaim alleges that Clyde is in violation of certain village zoning ordinances in that it has not provided the minimum number of off-street parking spaces. Oechslin claims that such violations interfere with and obstruct his use of the easement.

         The record does not reveal whether the trial court acted upon Oechslin’s March 3 motion for summary judgment or his June 12 motion to strike the amendment to Clyde’s complaint.

       The granting or denying of declaratory relief even when the controversy or some part thereof will be settled thereby is discretionary with the court. Courts “may, in cases of actual controversy, make binding declarations of rights.” (Emphasis added.) Ill. Ann. Stat., ch. 110, par. 57.1, Historical and Practice Notes, at 131 (Smith Hurd 1968).


author: Mr. JUSTICE WHITE Mr. PRESIDING JUSTICE RIZZI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLENN RAYMOND FISCHER, Defendant-Appellant.
    First District (3rd Division)
    No. 80-566
    Opinion filed September 9,1981.

      RIZZI, P. J., specially concurring.
    Constantine P. Xinos, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Mary Ellen Dienes, and William Gamboney, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

Defendant Glenn Raymond Fischer was charged by information with two counts of murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a)(1), 9 — 1(a)(2)), and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). Following a bench trial, he was acquitted of all murder and armed violence counts, but convicted of voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2) and sentenced to seven years’ imprisonment. On appeal to this court defendant asserts: 1) that the trial judge erred by refusing to admit into evidence testimony by a defense witness describing two prior acts of the deceased which allegedly showed his violent, aggressive character; 2) that the trial judge improperly relied upon a prior void conviction in sentencing the defendant; and 3) that defendant is entitled to two years and 11 months credit on the seven-year sentence because of time spent in the penitentiary on a conviction based on a statute subsequently declared unconstitutional and void.

The defendant’s charges were based on a shooting incident which occurred at 2 a.m. on December 1, 1978, in a Chicago tavern called the “Last Drop Inn.” Both the defendant and the deceased, Thomas King, had been in the tavern since the previous evening. In the opinion of the bartender, Rene Peralta, King had drunk about 12 beers and the defendant “about eight shots and beers,” but neither was intoxicated at the time of the shooting. Defendant had been observed at about 9:30 p.m. pointing a pistol at another patron in the bar. When asked by the bartender to leave, defendant complied but returned after a short period and commenced drinking. For approximately four hours defendant and deceased remained drinking at opposite ends of the bar. Shortly before 2 a.m. defendant walked to the men’s room located at the rear of the bar. Upon leaving the washroom defendant walked by King who was seated with some other patrons. At this point defendant had some words with King, who challenged him to pull out his “popgun” or “beanie.” Defendant responded by pulling out his revolver and pointing it at King’s head saying, “I’ll blow you away” or “I ought to blow your head off.” When King attempted to grab the gun or push it out of defendant’s hand the gun discharged. A struggle then ensued between the two men, and a second shot was heard when the two fell to the floor. Following this shot King lay dead on the floor, and the defendant got up and exited the tavern. According to the testimony of the State’s witnesses, no weapon or objects of any kind were observed in the deceased’s hands prior to or during the struggle with the defendant. Moreover, no bottles, weapons or glass were found in the area surrounding the body after the incident.

The police arrived at the lounge shortly after the shooting and were directed to the defendant’s apartment by State’s witness Robert Cook. Upon arriving at the defendant’s apartment building the police went up the back stairs and observed defendant and another man bending over the kitchen sink washing blood from defendant’s head. The witnesses also overheard defendant say to the other man, who was later identified as John McDonough, a family friend, “The son of a bitch hit me in the head with a bottle. What did you expect me to do?” When the officers entered the apartment, a gun was retrieved and defendant was placed under arrest. Following his arrest, defendant informed the police officers that the deceased had struck him in the head with a bottle. The officers then returned to the tavern to search for broken bottles or other debris but found none. The bartender testified that he had cleaned the bar in the interim as was his normal routine before leaving work, but stated that he had recovered no bottles from the area of the bar where the deceased was shot.

Following a denial of the State’s motion for a directed finding, the defense opened its case. In support of a plea of self-defense, the defense sought to introduce testimony of Sebastian Cannata relating to two prior specific acts of violence by deceased. After an offer of proof the trial court refused to admit the evidence. However, Cannata was allowed to testify that the victim’s reputation in the community was very bad and that the victim was a violent person.

Defendant testified on his own behalf. He stated that on the night of the shooting, King had called him a name as he was walking toward the washroom at about 8 or 9 p.m. At that time defendant stated to the deceased that he did not want any trouble and returned to his seat at the other end of the bar. Defendant testified that upon another trip to the washroom between 1:30 and 2 a.m., King called him some more names. When the defendant came out of the washroom, King said to him, “Hey, punk, pull your beanie out.” At this point King was rising from his barstool with a beer bottle in his hand. Defendant stated that he then pulled out his gun and said to King, “If you don’t leave me alone, I will blow you away.” Once defendant saw King return to his seat and drop the bottle, he turned to walk away but was struck on the back of the head with a bottle. According to the defendant, he then turned, pulled the gun and fired a shot away from King. When the two began to struggle, the gun accidentally discharged a second time, killing King. Although the defendant admitted that the gun was in his hand when King was shot, he has no recollection as to whether his finger was on the trigger at the time. Defendant stated that when he stood up his head was bleeding and he immediately left the bar and went home. Defendant testified at trial that he had inquired prior to the incident about the victim’s reputation in the community and that the victim was said to be a troublemaker.

The defense also called John McDonough, who testified that when the defendant arrived at the apartment during the early morning hours of December 1, 1978, defendant’s face was puffed up and he was bleeding from the head. McDonough further stated that when he asked defendant what had happened, defendant replied, “Some son of a bitch hit me over the head with a bottle.” McDonough stated that when the gun was taken from the defendant, defendant stated, “I think I have shot somebody.”

The State on rebuttal presented a certified copy of defendant’s 1970 conviction for “possession of a narcotic drug” for which defendant had been sentenced to five years’ probation. The manslaughter conviction and seven-year sentence followed.

Defendant’s first contention on appeal is that the trial court erred in refusing to admit into evidence the testimony of Sebastian Cannata as to two prior violent acts of the deceased. The State contends that this evidence is inadmissible as the acts were directed at someone other than the defendant and that the defendant had no knowledge of the acts at the time the shooting occurred.

In Illinois, evidence of specific acts of violence, if known to the defendant, are admissible to show the reasonableness of defendant’s apprehension of danger and therefore are admissible to establish self-defense. (People v. Gall (1979), 79 Ill. App. 3d 823, 398 N.E.2d 1118.) The purpose behind permitting the introduction of such evidence is to show the circumstances confronting the defendant, the extent of his apparent danger, and the motive by which he was influenced, as such factors show the defendant’s state of mind at the time of the occurrence. People v. Stombaugh (1972), 52 Ill. 2d 130, 284 N.E.2d 640; People v. Gall (1979), 79 Ill. App. 3d 827; People v. Peeler (1973), 12 Ill. App. 3d 940, 299 N.E.2d 382.

In the instant case, however, it is apparent that what the defendant is attempting to show is not the fearful or apprehensive state of mind of the defendant, but rather the propensity of the deceased for violence, in order to corroborate defendant’s testimony that the deceased was the aggressor on this particular occasion. Where evidence of the specific acts is sought for such purpose, it would serve no purpose to require defendant to have knowledge of the prior acts. People v. Baer (1976), 35 Ill. App. 3d 391, 342 N.E.2d 177, supports this conclusion. As in the case at bar, the defendant in Baer sought to introduce evidence of specific violent acts to establish a character trait of the deceased, not his reputation. The court stated the general rule that where the plea is self-defense and the defendant attempts to show that the victim was the aggressor, evidence of the propensity of the victim for violent aggression is generally permitted. However, in Baer the tendered evidence was held to be insufficient to prove the victim had a violent nature. Thus, the court ruled there was no error in excluding it. For the same reasons we find no error in the exclusion of Mr. Cannata’s testimony. Cannata’s testimony as set forth in the offer of proof was that on one occasion, while he was working as a bartender at a tavern in Chicago, he told deceased that it was against the rules for patrons to exit through the back door of the bar. King disregarded Cannata’s instruction and left by that exit. Further, Cannata stated that on another occasion approximately one year later, King became “rowdy” in the bar after having been refused a drink, and that he began pounding the bar and name calling. .After a while, King challenged Cannata to come outside. King then walked out of the bar and peered through the window at Cannata for about five minutes before leaving.

In our opinion, these acts described by Cannata were insufficient to establish that King was violent in nature. Many individuals become loud and somewhat less orderly after a few hours of drinking in their local tavern. This does not make them violent persons. We do not believe that this evidence has any probative value in determining whether in the fight with King defendant was the aggressor or acting in self-defense. Accordingly, we find that the trial judge properly excluded this evidence.

Defendant next asserts that the trial judge relied on an improper factor in sentencing him to a seven-year imprisonment for voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2). In the hearing on aggravation and mitigation, it was brought out that in 1965 defendant had been sentenced to the penitentiary for possession of marijuana, but that the statute under which defendant was convicted was later declared unconstitutional in People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407. Defense counsel argued before the trial court that it would be improper to consider defendant’s prior penitentiary sentence in aggravation because the statute under which he had been convicted had been declared unconstitutional. The following colloquy occurred:

“The Court: This defendant is not new to the Criminal Justice System. He’s been in the penitentiary. He is an appropriate candidate for the penitentiary, of course. Miss Clerk, I will sentence Mr. Fischer to the custody of the Illinois State Penitentiary for a period of seven years. Judgment is entered on the finding and sentence.” * °
Mr. Xinos: It seems to me that the court is considering, when you say the defendant has been in the penitentiary before, I have pointed out that that was the narcotics was marijuana, and—
The Court: I understand, Mr. Xinos. If the statute involving any offense is done away with by the Legislature this year, that doesn’t affect what happened five years ago. .
Mr. Xinos: Judge, it wasn’t the statute that did away with it. It was the McCabe case in 1971.
The Court: The Court declared it unconstitutional.
Mr. Xinos: That’s right.
The Court: That has nothing to do with what went before.
Mr. Xinos: It was unconstitutional from the beginning, Judge, and all those convictions were reversed and nullified.
The Court: I understand.
Mr. Xinos: And is the Court saying that, you know, he spent two years in the penitentiary, three years as he tells me, for a crime that, that was not a crime, and the court is saying—
The Court: Was a crime, or he wouldn’t have been there.
# « «
The Court: There was a possession.
Mr. Xinos: A ’70 conviction.
The Court: For possession of—
Mr. Xinos: Of heroin.
The Court: — of heroin.
Mr. Xinos: That’s true, Judge.
The Court: Well, that’s sufficient.
Mr. Xinos: But you are saying that he is not a stranger to the penitentiary, and I really don’t think that’s fair when the statute that he was convicted under was subsequently declared to be unconstitutional.
The Court: Well, nevertheless, that will be the order.”

While the imposition of sentence is generally a matter of judicial discretion and will not be altered upon review absent a showing of abuse (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882; People v. Kirkwood (1980), 82 Ill. App. 3d 252, 402 N.E.2d 677), it appears here that the trial judge improperly relied upon defendant’s 1965 conviction for possession of marijuana, a conviction based upon a statute later declared unconstitutional. We find this to be an abuse of discretion requiring that this cause be reversed and remanded for resentencing.

Defendant’s final argument is that he should receive credit against his present sentence for time served pursuant to his 1965 conviction. Following his conviction in 1965 for possession of marijuana, defendant served 2 years and 11 months in the Illinois Department of Corrections. Defendant now requests “compensation” for the time that he served because the statute under which he was convicted was subsequently declared unconstitutional. We find this argument to be patently without merit.

Defendant’s only support for his argument is article 1, section 12 of the Illinois Constitution, which provides: “Every person shall find a certain remedy in the laws for all injuries and wrongs which he received to his person, privacy, property, or reputation. He shall obtain justice by law, freely, completely, and promptly.” This provision does not mandate the type of relief defendant seeks. In fact, if defendant were given the credit he now requests, this court would be encouraging the commission of crime. A defendant who had wrongly served a prison sentence would then have license to commit a “free” crime or a crime with a diminished sentence. We cannot condone such an absurd result.

For the reasons stated above the decision of the circuit court of Cook County is reversed and remanded for resentencing.

Reversed and remanded for resentencing.

McGILLICUDDY, J., concurs.

Mr. PRESIDING JUSTICE RIZZI,

specially concurring:

I agree with the result reached in the opinion of the court, but I cannot concur with the rationale in the opinion regarding the admissibility of the testimony of Sebastian Cannata as to specific prior acts of the decedent. The opinion of the court adopts the position that specific prior acts of a decedent are admissible as a character trait of the decedent to establish that the decedent was the aggressor.1 disagree.

I believe that the following rules should be followed with regard to admitting character or reputation evidence of the decedent in a homicide case where there is some evidence of self-defense:

(1) If the evidence is offered by the defendant to show the state of mind of the defendant, i.e., that defendant reasonably believed that his use of force was necessary, then the decedent’s reputation for turbulence and violence and specific prior acts of turbulence and violence committed by the decedent are admissible if known by the defendant at the time. If not known by the defendant at the time, they are not admissible.
(2) If the evidence is offered by the defendant as a character trait of the decedent to show that the decedent was the aggressor, then the reputation of the decedent for turbulence and violence is admissible. This evidence would be admissible even if the defendant had not known of the decedent’s reputation at the time. However, specific prior acts of turbulence and violence by the decedent would not be admissible whether or not known by the defendant at the time.

In the present case, since defendant offered the specific prior acts of the decedent as a character trait to show that the decedent was the aggressor, they were not admissible. Only the reputation of the decedent for turbulence and violence would have been admissible.

The opinion of the court disregards the distinction between the admissibility of the reputation and the admissibility of specific prior acts of the decedent in a case where there is some evidence of self-defense. In doing this, the opinion merely refers to a statement found in People v. Baer (1976), 35 Ill. App. 3d 391, 396, 342 N.E.2d 177, 181-82, which in turn cites only a secondary authority to support the conclusion that specific prior acts of the decedent are admissible to establish that the decedent was the aggressor. However, the great majority of cases and jurisdictions where the issue has been raised hold to the contrary. State v. Jacoby (Iowa 1977), 260 N.W.2d 828, and cases cited therein; see State v. Barbour (1978), 295 N.C. 66, 243 S.E.2d 380; Henderson v. State (1975), 234 Ga. 827, 218 S.E.2d 612; cases cited in 1 Wigmore on Evidence §198, at 677 n.l (3d ed. 1940).

In State v. Jacoby (Iowa 1977), 260 N.W.2d 828, 838, the Supreme Court of Iowa reviewed cases from various jurisdictions where the question has been posed. The court succinctly stated:

“It is the rule in Iowa and the majority of jurisdictions that the quarrelsome, violent, aggressive or turbulent character of a homicide victim cannot be established by proof of specific acts.”

Another example of a case which expressly holds that specific prior acts are not admissible to show another person’s character as evidence of his conduct on a particular occasion is State v. Barbour (1978), 295 N.C. 66, 74, 243 S.E.2d 380, 385. There, the Supreme Court of North Carolina held:

“The trial court’s actions in excluding this witness’s testimony regarding specific acts of violence by the deceased which were not shown to be within defendant’s knowledge prior to the homicide and striking her statements as to the deceased’s violent character based solely on her personal experience were correct, since specific acts and a witness’ personal opinion are not admissible to show another persons character as evidence of his conduct on a particular occasion.” (Emphasis added.)

Also, the Supreme Court of Illinois has recognized the principle that specific prior acts are not admissible to show another person’s character as evidence of his conduct on a particular occasion. In People v. Willy (1921), 301 Ill. 307, 318, 133 N.E. 859, 864, the court stated:

“It appears to have been the early practice to prove the character of a person by the testimony of others who testified directly to his character from personal knowledge and observation. While there is some authority for proving character in this manner at the present time, such practice is unusual and against the great weight of modern authority. It is generally held that the personal opinion of a witness is incompetent evidence of either character or reputation, and that character is provable only by evidence of general reputation. (3 Ency. of Evidence, 27-35.) Evidence of specific acts of bad conduct is not admissible to show bad character.” (Emphasis added.)

In addition, I believe that the evidentiary reasons for prohibiting the introduction of specific prior acts of the decedent to prove that the decedent was the aggressor are convincing. First, it would be unfair and prejudicial to permit such evidence because a single prior act of the decedent may have been exceptional, unusual and not characteristic, i.e., a specific prior act would not show a character trait to commit an act or to react in a certain way. Second, permitting proof of specific prior acts of the decedent to show that he acted a certain way during the incident involved in the case on trial would open up numerous collateral issues, virtually making a separate trial out of each separate act. Third, although the State is bound to foresee that the reputation of the decedent may be put in issue, it cannot be expected to anticipate and prepare to rebut each and every specific prior act of the decedent. (See Henderson v. State (1975), 234 Ga. 827, 829, 218 S.E.2d 612, 615 (1975); Hunter, Trial Handbook for Illinois Lawyers §72:1, at 735 (4th ed. 1972).) Also, it has been stated that proving a character trait by evidence of specific instances of conduct “possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time.” State v. Jacoby (Iowa 1977), 260 N.W.2d 828, 838, quoting Notes of Advisory Committee on Proposed Rules, 28 U.S.C.A. R. 405, at 148 (1975).

Accordingly, in the present case I believe that the trial court properly refused to admit the testimony of Sebastian Cannata as to specific prior acts of the decedent because such evidence is not admissible to prove that the decedent was the aggressor. I disagree with the proposition expressed in the opinion of the court that specific prior acts of a decedent are admissible to prove that the decedent was the aggressor.

       The opinion of the court goes on to conclude that the testimony as to the specific acts of the decedent was not admissible in this case, but for a different reason.


author: Mr. JUSTICE McNAMARA

text:
    HELEN BLOCH, by Marvin Bloch, Her Father and Next Friend, et al., Plaintiffs-Appellants, v. HILLEL TORAH NORTH SUBURBAN DAY SCHOOL, Defendant-Appellee.
    First District (3rd Division)
    No. 80-2212
    Opinion filed September 9,1981.
    Despres, Schwartz and Geoghegan, of Chicago, for appellants.
    Stuart D. Perlman, of Chicago, for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs appeal from an order of the trial court granting summary judgment in favor of defendant Hillel Torah North Suburban Day School. Helen Bloch is a grade school child who was expelled from defendant, a private Jewish school, at mid-year in 1980. Her parents brought this action seeking to enjoin expulsion and for specific performance of defendant’s contract to educate Helen.

The complaint alleged that defendant arbitrarily and in bad faith breached its contract, and that Helen’s expulsion was motivated by defendant’s disapproval of plaintiffs’ leadership role in combatting an epidemic of head lice at the school. The complaint also alleged that the school uniquely corresponded exactly to the religious commitments desired by plaintiffs. Defendant’s answer stated that Helen was expelled, pursuant to school regulations, for excessive tardiness and absences. The parties also disputed the duration of the contractual obligation to educate. Defendant contended that the contract was to endure only for a school year since tuition for only that period of time was accepted by it. Plaintiffs maintained that the contract, as implied by custom and usage, was to endure for eight years, the first year’s tuition creating irrevocable option contracts for the subsequent school years, provided that Helen conformed to defendant’s rules.

After the trial court denied plaintiffs’ request for a preliminary injunction, both sides moved for summary judgment. The trial court denied plaintiffs’ motion and granted the motion of defendant. In the same order, the trial court gave plaintiffs leave to file an amended complaint for money damages.

Whether a court will exercise its jurisdiction to order specific performance of a valid contract is a matter within the sound discretion of the court and dependent upon the facts of each case. (11 Williston on Contracts § 1418, at 657-58 (3d ed. 1968); Fitzpatrick v. Allied Contracting Co. (1962), 24 Ill. 2d 448, 182 N.E.2d 183; Blaise v. Stein (1979), 75 Ill. App. 3d 793,394 N.E.2d 836.) Where the contract is one which establishes a personal relationship calling for the rendition of personal services, the proper remedy for a breach is generally not specific performance but rather an action for money damages. (11 Williston on Contracts §1423, at 784-85 (3d ed. 1968); Zannis v. Lake Shore Radiologists, Ltd. (1979), 73 Ill. App. 3d 901, 392 N.E.2d 126.) The reasons for denying specific performance in such a case are as follows: the remedy at law is adequate; enforcement and supervision of the order of specific performance may be problematic and could result in protracted litigation; and the concept of compelling the continuance of a personal relationship to which one of the parties is resistant is repugnant as a form of involuntary servitude. 11 Williston on Contracts §1423, at 786-87 (3d ed. 1968); Zannis v. Lake Shore Radiologists, Ltd.

Applying these principles to the present case, we believe that the trial court properly granted summary judgment in favor of defendant. It is beyond dispute that the relationship beween a grade school and a student is one highly personal in nature. Similarly, it is apparent that performance of such a contract requires a rendition of a variety of personal services. Although we are cognizant of the difficulties in duplicating the personal services offered by one school, particularly one like defendant, we are even more aware of the difficulties pervasive in compelling the continuation of a relationship between a young child and a private school which openly resists that relationship. In such a case, we believe the trial court exercised sound judgment in ruling that plaintiffs are best left to their remedy for damages. (See Zannis v. Lake Shore Radiologists, Ltd.) In St. Joseph School v. Lamm (1972), 288 Ala. 68, 257 So. 2d 318, the Supreme Court of Alabama held that specific performance was not available to compel a private grade school to educate a young child since such a contract calls for personal services. See also Flint v. St. Augustus High School (La. App. 1975), 323 So. 2d 229, 236; cf. Greene v. Howard University (D.D.C. 1967), 271 F. Supp. 609, rev’d in part (D.C. Cir. 1969), 412 F.2d 1128 (in action for private school’s breach of contract to employ teacher, damages at law and not specific performance is the appropriate remedy).

Plaintiffs’ reliance on three Illinois cases is misplaced. In DeMarco v. University of Health Sciences (1976), 40 Ill. App. 3d 474, 352 N.E.2d 356, a mandatory injunction was issued compelling a school to confer a degree on plaintiff. The order did not compel the continuance of a personal relationship, but instead provided for the performance of a solitary ministerial act which recognized the termination of the parties’ relationship. Similarly, in Tanner v. Board of Trustees (1977), 48 Ill. App. 3d 680, 363 N.E.2d 208, plaintiff sought to compel the issuance of a degree. In Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634, the court held that the plaintiff stated a valid class action for an injunction against a medical school’s misrepresentation of admission standards in its brochure and for restitution of application fees. In so holding, the court noted that plaintiff did not seek to compel the school to admit him. There was no issue concerning the enforcement of a personal relationship between adverse parties.

Illinois law recognizes the availability of a remedy for monetary damages for a private school’s wrongful expulsion of a student in violation of its contract. (See Aronson v. North Park College (1981), 94 Ill. App. 3d 211, 418 N.E.2d 776 (reversing the trial court on other grounds); McClintock v. Lake Forest University (1921), 222 Ill. App. 468.) And especially, where, as here, the issue involves a personal relationship between a grade school and a young child, we believe plaintiffs are best left to a remedy for damages for breach of contract.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed, and the cause is remanded for further proceedings permitting plaintiffs to file an amended complaint for money damages.

Affirmed and remanded.

RIZZI, P. J., and McGILLICUDDY, J., concur.