author: JUSTICE ROMITI JUSTICE LINN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANNIE BARNES, Defendant-Appellant.
    First District (4th Division)
    No. 80-1749
    Opinion filed June 17, 1982.

      LINN, J., dissenting.
    Robert E. Senechalle, Jr., and Stephen R. Murray, both of Senechalle & Murray, P.C., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask and Sheila M. King, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

Defendant Dannie Barnes was convicted of murder and concealment of a homicidal death following a jury trial and was sentenced to concurrent terms of 30 and 5 years for those crimes. On appeal defendant contends: (1) the trial court erred in failing to utilize any of defendant’s suggested questions during voir dire; (2) the State improperly adduced testimony concerning defendant’s exercise of his fifth amendment right to silence; (3) the trial court erred in barring the testimony of a defense witness concerning a statement made to him by the defendant; (4) the trial court should have granted defendant’s request that it instruct the jury on voluntary manslaughter; (5) the State’s final argument to the jury was inflammatory and prejudicial; (6) the trial court erred in denying defendant’s pretrial motion for a continuance.

We reverse and remand for a new trial.

At trial the State established that on September 15,1979, the partially nude body of a woman was found in a field in Gary, Indiana. Utilizing the woman’s high school ring the police determined her identity to be Betty Riley, a resident of Chicago. Subsequent police attempts to locate defendant, Riley’s boyfriend, were unsuccessful although the police spoke to defendant’s mother and were accompanied to his Chicago home by his brother.

On November 23, 1979, Gregory O’Brien, a police officer with the Naval Training Center in San Diego, met with the defendant and a Navy chaplain, Lieutenant Blackburn, in the chaplain’s office. There defendant told O’Brien that he had killed a woman in Chicago. O’Brien then placed the defendant under arrest.

On December 28, 1979, Terrence Gainer, a homicide investigator with the Chicago Police Department, questioned defendant, asking if he wanted to tell what he knew of the death of Betty Riley. Defendant related that he was in the front bedroom of his Chicago apartment with Riley on September 14, 1979, when she began talking about defendant being “worth more dead than he was alive.” At this time Riley was standing near a dresser and defendant was sitting on the bed. Defendant told Gainer he thought Riley was reaching for a knife on the dresser. He jumped from the bed, pushed her arm up, and as he did this he picked up an iron from the dresser and threw it at her. The electrical cord wrapped around her neck. Defendant denied having strangled Riley. Subsequently he “dumped” the body in Indiana with his brother’s aid. Over defense objections Gainer testified that after relating this statement defendant refused to give a recorded statement of what he had just told Gainer.

Dr. Wei Ping Loh, the pathologist who examined Betty Riley, testified that he observed a transverse mark on her neck 8.2 centimeters in length and 6 centimeters wide. Her larynx appeared to be fractured. He also observed four hemorrhagic areas inside her scalp. It was his opinion to a reasonable degree of medical certainty that the cause of death was a head injury and strangulation. He also testified that the mark on the neck was “most likely made by hand as opposed to a string or a cord.”

(1)

At the commencement of voir dire defendant submitted 13 supplementary questions which he wished the court to ask the prospective jurors. Defendant contends that the trial court erred in failing to utilize any of these questions. Defendant also contends that the court was required to either permit direct questioning by defense counsel or to pose defendant’s questions itself. We find no merit to either of these contentions.

Illinois Supreme Court Rule 234 (Ill. Rev. Stat. 1979, ch. 110A, par. 234) provides:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions.”

As is stated in the Supplement to Historical and Practice Notes (Ill. Ann. Stat., ch. 110A, par. 234, Supplement to Historical and Practice Notes, at 178-79 (Smith-Hurd Supp. 1981)):

“This rule was amended effective July 1,1975 to put the trial judge exclusively in charge of the voir dire examination unless he chooses to permit the parties or their attorneys to participate. Under the old rule the trial judge was required to initiate the voir dire but the parties or their attorneys had a right to supplement the judge’s examination.
# #
The new rule, while it allows the trial judge to permit the parties or their attorneys to make direct inquiry, also introduces the alternative, embodied in the comparable federal rule, of requiring the parties to furnish their questions to the trial judge. The amended rule also makes it clear that the determination of which alternative to use, and whether to permit any supplement to its own examination, lies entirely with the court. In this rule 234 departs from the federal rule, which makes supplementary participation by the parties, either directly or through submission of questions to the judge, mandatory. * * *”

Clearly under this rule the decision whether to permit supplementary questions by counsel, directly or indirectly, is left to the discretion of the trial judge. (See People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924.) Thus contrary to defendant’s contention the refusal of the court to permit any such supplementary questions does not constitute error per se. In ruling on defendant’s request the trial court stated:

“Counsel, as far as your proposed jurors’ questions are concerned some of them of the latter half are included in the Court’s usual format of the advice to the jurors and some of those things in the first part the first several questions we do not address to the prospective jurors but at any respect some of your matters are included in the Court’s usual advice to the jury. None of these questions will be asked that are outlined here the way they are stated here.”

We have examined all of defendant’s proposed questions although defendant has failed to specify which questions in particular were omitted to his prejudice. Some of those questions were clearly improper as constituting questions on the law or instructions (People v. Banasik (1981), 93 Ill. App. 3d 612, 417 N.E.2d 790), or as tending to precondition prospective jurors on defendant’s theory of the law (People v. Phillips (1981), 99 Ill. App. 3d 362, 425 N.E.2d 1040; People v. Banasik (1981), 93 Ill. App. 3d 612, 417 N.E.2d 790.) Other questions were in substance included in the judge’s statements, as he indicated they would be to counsel. Accordingly we find no abuse of discretion in the court’s actions in this regard.

(2)

Defendant contends that when the State elicited from Officer Gainer the information that after giving a written statement defendant refused to give a recorded statement of what he had just told the officer this constituted prejudicial evidence of defendant’s exercise of his fifth amendment right to silence.

It is improper for the State to comment on or adduce evidence concerning a defendant’s post-arrest exercise of this right. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272; see United States v. Hale (1975), 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133.) As defendant notes this proscription has been applied to testimony that a defendant answered some questions and then refused to answer additional questions. (Booton v. Hanauer (1st Cir. 1976), 541 F.2d 296; People v. Ortega (1979), 198 Colo. 179, 597 P.2d 1034.) But here defendant had given a complete statement to the police. The officer’s testimony cannot reasonably be said to have been intended to discredit the exculpatory element of that statement, as defendant suggests. Rather this was an attempt to fully set out the circumstances of the oral statement and to explain the absence of any written evidence of it. Similar circumstances were presented to the Michigan appellate court in People v. Collier (1981), 105 Mich. App. 46, 306 N.W.2d 387. There the court found that State-adduced evidence that defendant made a statement and then refused to sign it without consulting a lawyer did not constitute comment on his exercise of the right to remain silent. Accordingly, we find no prejudice arising from the State’s use of this testimony.

(3)

At trial the State successfully moved to preclude defendant from adducing the testimony of Chaplain Blackburn concerning a statement made by defendant just prior to his admission to Officer O’Brien concerning the killing. Defendant contends that this was error.

In an offer of proof it was established that Blackburn would testify that on November 23,1979, he received a phone call from defendant, who wanted to talk to him. They met in the chaplain’s office that evening. Defendant then told Blackburn a version of the incident in which Betty Riley reached for an upholstery knife on the dresser, defendant thought she was going to harm him, and in the ensuing struggle he choked her.

Contrary to defendant’s contention, People v. Newbury (1972), 53 Ill. 2d 228, 290 N.E.2d 592, is not in point. There defense counsel, in an effort to establish the defendant’s insanity, elicited the testimony of a defense-hired psychiatrist concerning defendant’s account of a killing. Counsel then unsuccessfully sought to preclude use of this testimony by the State as substantive evidence of guilt. The court ruled that this testimony was properly utilized by the State as an admission. Here it is defendant who seeks to use his own statement as substantive evidence. That he cannot do, for the statement is hearsay. (People v. McLaughlin (1929), 337 Ill. 259, 169 N.E. 206; People v. Garth (1975), 31 Ill. App. 3d 716, 344 N.E.2d 359; People v. Colletti (1968), 101 Ill. App. 2d 51, 242 N.E.2d 63.) Thus the trial judge did not err in granting the State’s motion in limine.

(4)

At the instructions conference defendant sought to have the jury instructed on voluntary manslaughter, contending that there was evidence defendant had acted in the mistaken belief he had a right to act in self-defense (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b)), and also contending that defendant was acting under a sudden and intense passion resulting from serious provocation by Betty Riley. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(a).) The trial court refused these instructions, stating:

“There really isn’t any evidence of [self-defense] except a self-serving allegation that has been referred to by a witness. That is what the defendant told him in the statement, partially. And it wouldn’t be sufficient.”

We find that this was error requiring reversal of defendant’s convictions. As was stated in People v. Lockett (1980), 82 Ill. 2d 546, 550, 413 N.E.2d 378, 38]:

“It is the settled rule in murder cases that if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter, an instruction defining manslaughter should be given. [Citations.]”

Here the sole basis for defendant’s conviction for murder was his own statement to the police. Yet in that same statement defendant indicated that, believing the victim was reaching for a knife, he pushed her away and threw an iron at her. Defendant’s contention was that the cord then wrapped around the victim’s neck, strangling her. The State contends that this assertion was incredible and was rebutted by the testimony of the pathologist. In fact that witness testified only that it was most likely that the strangulation was manual rather than by a string or cord. Furthermore the believability of defendant’s version of the killing was for the jury to decide. The trial court’s action precluded defendant from obtaining their consideration of this theory despite the evidentiary basis for it. This error requires reversal of defendant’s convictions and remandment of the cause for a new trial. People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378; People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323.

Defendant also contends that an instruction on voluntary manslaughter based on defendant having acted in the heat of passion should have been given. But we find no evidence to support such an instruction. Nothing in defendant’s statement to the police suggested that he was acting in the heat of passion when he threw the iron at the victim. Certainly the victim’s words alone were insufficient to justify the instruction. (People v. Crews (1967), 38 Ill. 2d 331, 231 N.E.2d 451; People v. Pequino (1978), 62 Ill. App. 3d 75, 379 N.E.2d 30.) Thus we find no error in the failure of the trial court to give an instruction on this form of voluntary manslaughter.

(5)

We also find that defendant’s right to a fair trial was prejudiced by improper comments made by the State in final argument to the jury. At trial defendant had successfully moved to preclude the State from eliciting from Officer Gainer the information that human blood (of indeterminate type) was found on the bedroom floor of defendant’s home 13 days after Betty Riley’s death. No other evidence from that apartment was introduced by the State. In final argument defense counsel commented to the jury on the lack of any evidence from the apartment. In his argument the prosecutor then stated:

“Ladies and gentlemen, Counsel told you that we didn’t tell you what happened in the apartment. Counsel knows all the evidence in the apartment. He knows what we had. We would wish we could show it to you.”

Defendant’s objection to this was sustained but his request for a mistrial was denied. These comments were highly improper and we find that the prejudice arising from them was not eliminated by the mere sustaining of defendant’s objection. In a case where no direct physical evidence linked defendant to the crime the suggestion by the State that such evidence existed but was being withheld from the jury could only have been calculated to prejudice his case in the eyes of the jury. See People v. Dyer (1977), 47 Ill. App. 3d 63, 361 N.E.2d 770.

The prosecutor also stated, in reference to a character witness produced by the defendant, that:

° * every murderer has somebody who likes him, thinks he is a good boy. John Gacy’s mother would have come in and said her son was a good boy.”

Again defendant’s objection was sustained but his motion for a mistrial was denied. This effort by the State to inject into this case the image of a mass murderer whose case was fresh in the public mind was clearly improper. Similar comments have been criticized by Illinois courts but then held to be harmless error. (People v. Szerletich (1980), 86 Ill. App. 3d 1121, 408 N.E.2d 1098; People v. Lion (1957), 10 Ill. 2d 208, 139 N.E.2d 757.) However we need not decide the prejudicial effect of this comment alone, for taken in combination with the State’s improper suggestion of evidence withheld from the jury, and the failure of the trial court to instruct the jury on a lesser offense for which there was evidence in the record, we find that defendant was denied a fair trial and -his convictions must be reversed and the cause remanded for a new trial.

(6)

Because of our determination of these issues we need not reach defendant’s contention concerning the failure of the trial court to grant a pretrial continuance.

For the reasons set forth defendant’s convictions are reversed and the cause remanded for a new trial.

Reversed and remanded.

JOHNSON, P. J., concurs.

JUSTICE LINN,

dissenting:

I respectfully dissent from the decision reached by my colleagues. It appears to me that the reversal is based upon the most tenuous of grounds. In my judgment, the reversal comes perilously close to abrogating the fundamental role of the judiciary to mete out justice supportive of our societal values as. expressed in established law. This is not to say, however, that a defendant’s right to a fair trial should be disregarded.

The majority correctly states the rule that a manslaughter instruction must be given if any evidence in the record, if believed, would reduce a charge of murder to the crime of manslaughter. (People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373.) It also correctly states that “very slight evidence upon a given theory of a case will justify the giving of an instruction.” People v. Khamis (1951), 411 Ill. 46, 53, 103 N.E.2d 133, 136.

However, as I see it, the foregoing authority does not establish a rule of law to the effect that an instruction must always be given no matter how fragile the connection betweem claimed activity and reality. Thus, as asserted by our court in People v. Purrazzo (1981), 95 Ill. App. 3d 886, 892, 420 N.E.2d 461, 466, quoting People v. Bratcher (1976), 63 Ill. 2d 534, 540-541, 349 N.E.2d 31, 34:

“Nevertheless, the Very slight evidence’ test does establish a minimal level beneath which instructions need not be given. ‘To hold otherwise would permit a defendant to demand unlimited instructions * * * based on the merest factual reference or witness’ comment.’ ”

I submit that the evidence presented by Dannie Barnes is just that — “the merest factual reference” based on a “witness’ comment.” As such, it does not approach the minimal level of evidence required, and thus a voluntary manslaughter instruction need not have been given.

The sole evidence offered as justification for a voluntary manslaughter instruction was in Barnes’ statement to the arresting police officer. In that statement Barnes said that he threw an iron at the victim, Betty Riley, because she said Barnes was “worth more dead than alive” and appeared to be reaching for a knife. Allegedly, the electrical cord of the iron wrapped around Riley’s neck and strangled her. However, it is clear that “[a defendant’s statement must] tell a reasonable story or be judged by its improbabilities.” (People v. Morehead (1970), 45 Ill. 2d 326, 330,259 N.E.2d 8,10.) I believe that in this case the defendant’s story is so inherently improbable that it borders on the impossible. I necessarily must conclude that the able and experienced trial judge did not err in refusing to give a voluntary manslaughter instruction.

In addition to the insufficiency of the evidence itself to warrant giving a manslaughter instruction, defense counsel (who had represented Barnes at trial) acknowledged in oral argument that he had not requested that a self-defense instruction be given. Barnes’ attorney admitted that his client’s claim of a mistaken belief that self defense was reasonable was so unbelievable that he dared not even request an instruction on that theory. Further, when defense counsel was confronted with the fact that at trial he had structured his case on the theory of accident, not self defense, he replied, “Judge, I did. ° ” The reason that I did was that I had nothing else.”

“By its very nature self-defense, whether reasonable or not, relates to the intentional or knowing use of force and not to an accidental * * * [killing].” (People v. Purrazzo (1981), 95 Ill. App. 3d 886, 893,420 N.E.2d 461, 467.) Thus, it seems to me that, faced with a case argued on the basis of accident, the trial judge did not err in refusing a voluntary manslaughter instruction bottomed on a mistaken belief that self defense was necessary.

Considering the total record and the law as I understand it, I conclude that the grounds for affirming Barnes’ conviction are by far much stronger and compelling than the grounds on which the reversal is based. I would affirm the trial court.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    JAMES DONAHUE et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2260
    Opinion filed June 17, 1982.
    Robert S. Sugarman and Stephen B. Horwitz, both of Jacobs, Burns, Sugarman & Orlove, of Chicago, for appellants.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County dismissing plaintiffs’ complaint for injunctive relief. We find that the case is moot and dismiss the appeal on that ground.

According to the complaint plaintiffs are residents of the city of Chicago who achieved a passing score on an employment examination for firefighters administered by the department of personnel of the city of Chicago. Plaintiffs, and others who passed the examination, were then ranked according to their scores and were listed on Firefighters Eligibility List No. 8106 (list 8106). Prior to February 14, 1980, approximately 250 candidates had been certified and appointed to the position of firefighter from this list in accordance with personnel board rules. Upon their appointment these persons began to serve a one-year probationary period leading to a career service appointment.

On February 14,1980, the Chicago Firefighters Union began a strike. The resulting manpower shortage caused the city to invoke emergency employment powers under section 25.1 — 5(8) of the Municipal Code of Chicago. (Chapter 25.1 of the Municipal Code was repealed and replaced by a new chapter 25.1 on July 20,1981. Journal of Proceedings of the City Council of the City of Chicago, July 20, 1981, at 6680-6704.) That section provided:

“Whenever a serious emergency exists in which substantial impairment, harm or loss to the citizens, the property of the City, or a program of the City will result, and which makes it impossible to fill a position in the Career Service by the normal procedure, a department head with the consent of the Director may appoint any qualified person to such position under an emergency appointment. Such person shall be employed only during such emergency and for a period not to exceed ninety (90) calendar days.” (Municipal Code of Chicago 1980, ch. 25.1, par. 25.1 — 5(8).)

The city hired approximately 800 individuals to fill vacancies created by the strike. Although, according to plaintiffs’ complaint, many of these individuals were not taken from the eligibility list, and those who were taken from that list were not selected in sequential order, plaintiffs concede that the city acted properly within its emergency powers in making these temporary appointments. However they contend that these individuals were improperly retained after the strike ended. (Personnel rules then in effect extended the duration of such emergency appointments for 90 days after the emergency has ended, but the emergency employees were retained even after that period had ended.)

On June 26,1980, plaintiffs filed their complaint, contending that the retention of these employees was unlawful and deprived plaintiffs of their right to secure career service appointments to those positions. Plaintiffs also contended that cancellation of list 8106 (which had a one-year posting period ending June 27, 1980) before the emergency appointments were vacated and those positions filled from that list would cause irreparable injury to plaintiffs by eliminating their opportunity to secure those appointments. Plaintiffs requested the entry of a temporary restraining order and then preliminary and permanent injunctions (1) barring defendants from cancelling or withdrawing list 8106, (2) barring defendants from continuing the emergency appointments and requiring them to vacate and rescind those appointments, and (3) ordering defendants to utilize list 8106 in sequence according to numerical ranking to fill the resulting vacancies.

At a June 27, 1980, hearing on plaintiffs’ motion for a temporary restraining order counsel for defendants informed the court that list 8106 would be extended for one year. Nonetheless the court then issued an order requiring that the list remain in effect until further order of court. Defendants have informed this court that the list continues to be posted.

Subsequently defendants and certain intervenors (representing the class of about 800 individuals receiving the emergency appointments) moved to dismiss plaintiffs’ complaint. The court granted these motions, finding that the city had acted properly within the authority of section 3 — 11 of the Municipal Code of Chicago, which provides:

“The mayor shall be ex-officio coordinator of activities in cases of emergency resulting from any explosion, fire, flood, riot, storm or other cause requiring concerted measures for the maintenance of public peace and order, the preservation of life and property and the relief of suffering, or for any of these purposes. He shall formulate, and, as occasion therefor arises, he shall execute plans for the prevention of such emergencies so far as possible and for meeting them effectively when they arise. Obedience to his orders in executing such plans and meeting such emergencies is obligatory upon all departments and heads of departments and upon all other officers and employees of the city of Chicago. The fire commissioner shall be deputy co-ordinator of such activities under supervision of the mayor as co-ordinator. In the absence or inability to act of the fire commissioner his powers and responsibilities shall be vested in an acting deputy co-ordinator appointed by the fire commissioner.” (Municipal Code of Chicago 1981, ch. 3, par. 3 — 11.)

The court also found that plaintiffs had no vested property interest in the eligibility list, no threat of imminent harm to plaintiffs existed because the eligibility list was still active and would be for some time, that plaintiffs’ likelihood of success on the merits was “negative,” and the threat and harm to defendants far outweighed that to plaintiffs so that equity favored defendants. Accordingly defendants’ and intervenors’ motions to dismiss were granted.

We do not reach the merits of these findings, for we agree with defendants that subsequent events have rendered the cause moot. On May 13,1981, the Chicago City Council enacted an ordinance providing:

“SECTION 1. Any person who as of the date of the passage of this ordinance, holds an emergency appointment within the Fire Department of the City of Chicago is hereby given a Probationary Career Service Appointment to the position of Firefighter, Grade FI, effective on and after the date of the passage of this ordinance. SECTION 2. Any person given Probationary Career Service Appointment to the position of Firefighter, Grade FI pursuant to this ordinance shall serve a probationary period of one year as provided in the City of Chicago Personnel Rules and upon satisfactory completion of the probationary period shall be given Career Appointment to the position of Firefighter, Grade FI and shall acquire Career Service status in the position.
SECTION 3. The Commissioner of Personnel and the Fire Commissioner are authorized and directed to apply and carry out this ordinance and to perform any other lawful acts which may be necessary or desirable to carry out the purposes and provisions of this ordinance.
SECTION 4. This ordinance shall govern and prevail over all ordinances, statutes, and rules and regulations contrary to or inconsistent with the terms of this ordinance.
SECTION 5. This ordinance shall take effect and be in force from and after its passage.” (Journal of Proceedings of the City Council of the City of Chicago, May 13,1981, at 6144.)

Appellants do not challenge the validity of this ordinance or its applicability to the emergency employees involved in this cause. We have noted that the relief sought by plaintiffs was extension of the posting period of the eligibility list, vacation or rescission of the hiring of the emergency employees, and filling of those vacancies by order from that list. The list has been extended indefinitely and nothing in the record suggests that the city will fail to utilize it for further hiring. But the ordinance we have cited above precludes the other two forms of relief and renders moot any controversy as to the city’s original action in continuing to employ these individuals. As was stated in La Salle National Bank v. City of Chicago (1954), 3 Ill. 2d 375, 379, 121 N.E.2d 486, 488:

“Since the existence of a real controversy is an essential requisite to appellate jurisdiction, the general rule is that where a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved, it will dismiss the appeal or writ of error even though such facts do not appear in the record.”

Plaintiffs argue that this case presents an issue of substantial public interest such that it should be considered despite its mootness. Illinois does recognize this exception, but it is to be applied very narrowly, and the public interest must be very clear to prevent dismissal of appeals involving moot questions. (People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill. 2d 160, 116 N.E.2d 880; In re Johnson (1977), 53 Ill. App. 3d 921, 369 N.E.2d 70.) Among the criteria for establishing this exception are the public nature of the question presented, the desirability of authoritative determination of the issue for future guidance of public officials, and the likelihood of recurrence of the question. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769, cert. denied (1952), 344 U.S. 824, 97 L. Ed. 642, 73 S. Ct. 24; Lerner v. Lerner (1980), 84 Ill. App. 3d 721, 405 N.E.2d 1328.) It has been held that all three of these criteria must clearly be met before a court will decide a case despite its mootness. Lerner v. Lerner (1980), 84 Ill. App. 3d 721, 405 N.E.2d 1328; In re Johnson (1977), 53 Ill. App. 3d 921, 369 N.E.2d 70; Hill v. Murphy (1973), 14 Ill. App. 3d 668, 303 N.E.2d 208.

In this cause the issue of whether the mayor of Chicago’s emergency powers under section 3 — 11 of the Municipal Code of Chicago extend to the hiring of emergency appointees for periods longer than that otherwise provided for does present an issue of public interest. But because of the extraordinary nature of the events leading up to this dispute we do not find it likely that the question will recur, nor do we find it necessary that an authoritative determination of the question be made for the guidance of public officials in the future. Accordingly we find that the cause should be dismissed as moot.

Cause dismissed as moot.

JOHNSON, P. J., and LINN, J., concur.


author: JUSTICE JIGANTI

text:
    BUNG-ORN NETISINGHA et al., Plaintiffs-Appellants, v. END OF THE LINE, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-3259
    Opinion filed June 17, 1982.

      Sodaro & Deboice, of Chicago, for appellants.
    George C. Rantis, of Chicago, for appellee Mary Creamer.
    Morris D. Witney, of Chicago, for appellee Prasit Netisingha.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action was brought as a shareholder’s derivative suit by the plaintiffs, Bung-Orn Netisingha and Uthan Netisingha against End of the Line, Inc., and its officers and directors, Mary G. Creamer, Terrence T. Creamer, Phontong Netisingha and Prasit Netisingha. The plaintiffs sought to impose a constructive trust upon certain real estate purchased by Mary Creamer while she was secretary of the corporation and to obtain an accounting of the funds received and expended by the corporation for the period from January 1,1977, to the date the complaint was filed, November 21,1979, and thereafter. The trial court denied both the constructive trust and the accounting. The plaintiffs do not appeal from the decision concerning the constructive trust. The sole issue before this court is whether the trial court erred in denying the plaintiffs’ request for an accounting.

End of the Line is a fast-food restaurant owned and operated by the parties to this suit. The shares in the corporation are divided equally between plaintiffs Bung-Orn Netisingha and Uthan Netisingha, and defendants Mary Creamer and Phontong Netisingha. Bung-Orn Netisingha was elected a director and the treasurer of the corporation. Mary Creamer was elected a director and the secretary of the corporation. As such, Mary Creamer kept the books and financial records of the corporation. She made all of the bank deposits and wrote the corporate checks. The plaintiff Uthan Netisingha acted as night manager of the restaurant and the defendant Prasit Netisingha was the day manager.

It is essential to an understanding of this lawsuit to briefly outline the accounting procedures utilized at End of the Line. The restaurant is a 24-hour operation employing as many as 14 and as few as 7 workers. The bookkeeping and money handling procedures followed at End of the Line were initiated by Terrence Creamer, Mary Creamer’s husband, and Waroon Netisingha, Bung-Orn Netisingha’s husband. Each employee is responsible for ringing up on the cash register sales made to his particular customer. At both the end of the day shift and the night shift the day or night manager would take the money out of the register, count it, and record the amount on a brown paper bag into which he would place the cash together with receipts for any bills paid from the register that day. He would read the cash register tape total and compare it with the actual count and write on the brown paper bag any difference between the two. The information recorded on the night-brown-bag would be copied onto the day-brown-bag and totaled. The night proceeds would be transferred into the day-brown-bag and those proceeds would be delivered to Mary Creamer each day. As the bookkeeper for End of the Line, Mary Creamer would get six day bags a week and record that information on ledgers as weekly totals rather than daily totals. The cash register tapes were not sent to the bookkeeper, and once the ledger entry was made the brown bags were destroyed.

In December 1978, Bung-Orn Netisingha asked Uthan Netisingha to procure the cash register tapes so she could determine the gross receipts of End of the Line. He did so during December 1978 and again during the first three months of 1979.

On November 13, 1979, Bung-Orn Netisingha served a written demand upon the officers and directors of End of the Line for a complete accounting and for the delivery of all corporate books and records. Mary Creamer responded to that request by delivering the corporate bank statements on November 21,1979. The present suit was filed on that date. On March 10, 1980, the plaintiffs filed a petition for a court order to permit Bung-Orn Netisingha to have access to the place of business in order to observe the cash register and to obtain and verify the day and night tapes. That order was entered on March 12,1980.

At trial, the plaintiffs attempted to show that substantial funds were missing from the gross receipts of the business. They introduced the corporate income tax returns from 1976, 1977, 1978 and 1979. These returns reflected the total sales and cost of goods for those years. The plaintiffs also introduced records of all of the deposits of receipts made by the corporation during all relevant times. A ratio of “sales” to “cost of goods sold” for End of the Line was determined by dividing End of the Line’s total yearly sales (as obtained from its income tax returns for 1976 through 1979) by its total yearly “cost of goods sold” (figures taken from the same returns). This ratio demonstrated a percentage situation, and showed how much more, percentage-wise, the monies taken in were than the monies expended in costs. Using this ratio, the plaintiffs showed that in 1976, End of the Line took in $2.06 for each dollar spent to purchase goods. In the year 1977, End of the Line took in $1.98 for each dollar’s worth of goods purchased. In the year 1978, the ratio dropped to $1.77 for each dollar of goods purchased, and in 1979, it dropped even further to $1.65 per dollar’s worth of goods purchased. The plaintiffs then demonstrated that for the period from December 1978 through March 1979 (the time during which Uthan Netisingha gave the register tapes to Bung-Orn Netisingha), the ratio of sales to cost of goods sold was $2.11. During the weeks when Bung-Orn Netisingha watched the cash register under court order the ratio was $2.00 received for every dollar spent. The defendants introduced the corporate records of sales made and costs expended for the period after Bung-Orn Netisingha began to sit in and watch the register and through August 30, 1980. The defendants’ figures show that the ratio of sales to cost of goods sold for that period was $1.89 to $1.00. The plaintiffs claim that the rise in gross receipts after Bung-Orn Netisingha began her watch of the cash register indicates that some of the corporation’s gross receipts had been disappearing before reaching the bank. Accordingly, the plaintiffs argue that the court erred in denying their request for an accounting.

The plaintiff in a suit for an accounting has the burden of proving his right to the desired accounting. (Derkers v. Vaughan, Co. (1952), 348 Ill. App. 407, 109 N.E.2d 262; Lager v. Rea (1951), 344 Ill. App. 438, 101 N.E.2d 285; 1 Am. Jur. 2d Accounts and Accounting sec. 47 (1962); 1 C.J.S. Accounting sec. 39 (1936).) “The right to an accounting # ° ” is not an absolute right, but is one which should be accorded only on equitable principles. It will not be ordered if the circumstances are such as to make an accounting unnecessary or improper.” (Tankersley v. Albright (7th Cir. 1975), 514 F.2d 956, 970 n.39.) The trial court has broad discretion in determining whether to order an accounting, and in making this determination it will consider the particular circumstances of each case. See Nelson v. Darling Shop of Birmingham, Inc. (1963), 275 Ala. 598, 157 So. 2d 23; Dailey v. Sunset Hills Trust Estate (1975), 30 Ill. App. 3d 121, 332 N.E.2d 158.

In the case at bar, the plaintiffs ask for an accounting based on evidence which they interpret as showing that substantial amounts of the gross receipts of the corporation were not deposited. Jerome Lipman, a certified public accountant called by the plaintiffs, analyzed the corporation’s tax returns and the ratio of sales to cost of goods sold and concluded that money was missing. However, it appears that under the bookkeeping and accounting practices employed at End of the Line, an accurate accounting of all monies received and disbursed would be impracticable if not impossible. Under this system, which was set up by Waroon Netisingha, Bung-Orn’s husband, and Terrence Creamer, Mary’s husband, the cash register tapes and the brown paper bags with the daily totals on them were systematically destroyed. There is therefore no evidence that Mary Creamer did not accurately transpose the sale and expenditure data from the brown paper bags to her accounting sheets or that she did not deposit all monies given to her in the bags.

As previously stated, a court of equity has broad discretion in determining whether to order an accounting based upon the particular circumstances in each case. The plaintiffs here were not only familiar with the type of accounting practices utilized at End of the Line, they played an integral role in setting up a system which insured the destruction of all evidence which would accurately document the gross receipts of the business. We believe the trial court was acting within its discretion when it refused to hold the defendants liable to account under these circumstances.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

JOHNSON, P. J., and ROMITI, J., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    INLAND REAL ESTATE CORPORATION et al., Plaintiffs-Appellees, v. THE VILLAGE OF PALATINE, Defendant-Appellant.—(FERNDALE HEIGHTS UTILITIES CO., Defendant.)
    First District (5th Division)
    No. 81-3051
    Opinion filed June 18, 1982.
    Rehearing denied July 21, 1982.

      Littlejohn, Glass & Yowell, Ltd., of Northbrook (Bradley M. Glass, G. Kent Yowell, and Everett M. Hill, Jr., of counsel), for appellant.
    Edward G. Finnegan, Ltd., of Chicago, for appellees.
    Rudnick & Wolfe, of Chicago (Don E. Glickman, of counsel), for amici curiae La Salle National Bank, Trustee, American National Bank, Trustee, Amdur Associates, Inc., Schaumburg Management Co., Inc., and Midwest Multi-family Management, Inc.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

In this appeal, we granted the application under Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308) of defendant Village of Palatine (Palatine) which sought reversal of an interlocutory order directing it to file applications with the Illinois Commerce Commission (ICC) for approval of both its acquisition of the Ferndale Heights Utility Company (Ferndale) and its proposed water rates for Ferndale’s former customers.

The facts are largely undisputed. Palatine purchased the plant and facilities of Ferndale, which were located in an unincorporated area outside the boundaries of Palatine and separate and apart from the utility system used by Palatine in servicing its own residents. By ordinance, Palatine adopted water rates for the Ferndale customers which were not only higher than those previously approved by the ICC but also were more than the rates charged Palatine’s own residents. Plaintiffs, as former Ferndale customers, then filed this suit as a class action for “injunction, specific performance and other relief” which, in pertinent part, sought certain injunctive relief with respect to the increased water rates and also asked either that the acquisition of the Ferndale plant be set aside or that the court make a determination of reasonable water rates.

It appears that a preliminary injunction was entered restraining Palatine from discontinuing water service to plaintiffs because of any refusal on their part to pay water charges in excess of those contained in the Ferndale tariff. Palatine then moved to dismiss plaintiffs’ complaint, but the record indicates that no action had been taken on the motion when Palatine presented a number of motions in a single pleading, pertinent of which were motions (a) for partial summary judgment and (b) to modify the injunctive order. In the former, Palatine alleged that its operation and ownership of the Ferndale facilities was not subject to regulation by the ICC and, following a hearing, the court made a finding that the acquisition by Palatine of the Ferndale facilities and the regulation of water rates to the former Ferndale customers “are subject to the jurisdiction of the Illinois Commerce Commission and require its prior approval.” On the basis thereof, an order was entered in which Palatine’s motions for partial summary judgment and to modify the injunction order were denied, and Palatine was directed to seek ICC approval of the Ferndale acquisition and of the water rates it proposed.

Opinion

The sole contention raised by Palatine on appeal is that the trial court improperly directed it to seek approval of the ICC of its Ferndale acquisition and of the proposed water rates.

Initially, we note that the ICC is an administrative body which was established by and derives its authority from the Public Utilities Act (Act) (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 1 et seq.) and that it has no authority except that expressly conferred upon it (Black Hawk Motor Transit Co. v. Illinois Commerce Com. (1947), 398 Ill. 542, 76 N.E.2d 478; Liberty Trucking Co. v. Illinois Commerce Com. (1980), 81 Ill. App. 3d 466, 401 N.E.2d 581). Further, the ICC is without power to extend its jurisdiction, as that is within the prerogative of the legislature. Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 55 Ill. 2d 205, 302 N.E.2d 334.

The purpose of the Act is to provide for regulation of public utilities, and its provisions grant authority to the ICC over the ownership and operation of “public utilities” as the term is defined therein in section 10.3. However, we think it clear from the express language of the Act, as well as the case law interpreting it, that while a public utility within the meaning of the statute includes a utility owned and operated by a private corporation, a municipally owned utility is excluded under section 10.3 thereof, which in relevant part provides:

“ ‘Public utility’ does not include, however:
1. public utilities that are owned and operated by any * * * municipal corporation of this State, * ° *;
e # # ”
Ill. Rev. Stat. 1979, ch. 111 2/3, par. 10.3.

As explained in Springfield Gas & Electric Co. v. City of Springfield (1920), 292 Ill. 236, 240-43,126 N.E. 739, 741-42, aff’d (1921), 257 U.S. 66, 66 L. Ed. 131, 42 S. Ct. 24:

“Municipal corporations, however, are expressly excepted from the terms and provisions of the Public Utilities act by section 10 thereof and in a very emphatic manner, — so much so that there can be no question that the act was not intended to apply to any public utility owned by a city.
# # #
The statute, we must infer, was adopted in accordance with a plan. [Citation.] That plan was, that all private corporations owning and operating public utilities should be bound by all the provisions of the act and that all municipal corporations should be excluded from the provisions of the act. Public utilities owned and operated by municipalities were to be governed and controlled by the provisions of the Municipal Ownership act and regulated only by such municipalities.”

It is thus our belief that the Act eliminates municipally owned public utilities from ICC review without exception, and we have found no other language in the Act, nor have plaintiffs referred us to any, which either manifests an intention of the legislature to provide otherwise or which distinguishes municipal ownership of a utility within its corporate limits from ownership beyond its territorial boundaries.

It is further argued here by plaintiffs that review of rates by the ICC is required in order to protect the rights of the Ferndale consumers because, unlike municipally owned utilities serving their own residents, plaintiff residents of Ferndale are unable to affect the decisions of the Palatine officials through the electoral process. We note, however, that the inability of the consumer to vote municipal officials in or out of office does not leave the consumer without a remedy, because the reasonableness of their rates is subject to judicial review. (Conner v. City of Elmhurst (1963), 28 Ill. 2d 221, 190 N.E.2d 760; Village of Niles v. City of Chicago (1980), 82 Ill. App. 3d 60, 401 N.E.2d 1235; Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89,405 N.E.2d 1256.) As the supreme court elaborated in Springfield:

“Municipal officers under the Municipal Ownership act cannot discriminate in rates or make exorbitant and unjust rates to consumers if they discharge their duties faithfully, honestly and effi-
ciently under that act. All their rates and charges fixed by ordinances or resolutions are subject to review by the courts to a like extent as the rates fixed by the Public Utilities Commission for public utilities privately owned, although the matter of review may be had under a different law and by a different remedy.” 292 Ill. 236, 253, 126 N.E. 739, 746, aff'd (1921), 257 U.S. 66, 66 L. Ed. 131, 42 S. Ct. 24.

The courts are in agreement that municipalities selling water to nonresidents do so in their proprietary rather than their governmental capacity and, in so doing, are subject — as are privately owned utilities — to the rule that utility rates must not be unreasonable or discriminatory. (Conner v. City of Elmhurst (1963), 28 Ill. 2d 221, 190 N.E.2d 760; Amalgamated Trust & Savings Bank v. Village of Glenview (1981), 98 Ill. App. 3d 254, 423 N.E.2d 1230; Village of Niles v. City of Chicago (1980), 82 Ill. App. 3d 60, 401 N.E.2d 1235.) As stated in Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89,94-95, 405 N.E.2d 1256, 1262:

“When a municipal corporation owns and operates a water system for the purpose of selling water to consumers, it is acting in a business capacity and is generally to be treated as if it were a private utility company. [Citations.] * * "At common law, such an enterprise, because it had a monopoly on the service provided in the area, was prohibited from charging exorbitant rates and was required to serve all of its consumers without unreasonable discrimination in rates or manner of service. [Citations.] Today, private utility companies are prevented from charging exorbitant rates or from engaging in unreasonable discrimination in rates or manner of service by statute, and are no longer Subject to the common law. [Citation.] Though there is no statute that prevents municipal corporations that operate public utilities from acting in an unreasonably discriminatory manner, there is still the common law duty that prevents them from doing so.”

We find unpersuasive plaintiffs’ contention that Palatine should be subject to ICC jurisdiction because it was acting as a privately owned utility. It appears to us that in excluding municipally owned public utilities from ICC review, the language of the act in defining limitations on ICC jurisdiction leaves nothing to inference or judicial interpretation.

Moreover, it is not the function of the judiciary to legislate, and it is a rule in this State that the intention of the legislature must be ascertained primarily from the statute itself, and where its provisions are plain and unambiguous the courts should not read into it any exceptions or limitations which depart from its plain meaning — however desirable or beneficial they may be. (Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585.) If the General Assembly had intended to create an exception for utilities owned by a municipality but located and serving customers outside its corporate limits, it has not so stated, and we are without authority to do so in light of the plain and unambiguous provisions of the Act. Although we believe that such utilities should come within the authority of the ICC, we are of the opinion that any expansion of its jurisdiction to include municipally owned utilities beyond their corporate limits must come through the legislative process.

In this regard, we note that there are currently pending before the Illinois General Assembly related bills to amend section 11 — 117—4 of the Illinois Municipal Code of 1961 (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 117—4)—one of which provides that ICC shall succeed the circuit courts in their authority to determine water rates for those consumers located outside the municipal limits of a municipality owning and operating a water plant providing such service (H.B. 2562, 82d Gen. Ass., 1982 Sess.), and the other provides that the ICC shall succeed to the courts upon the failure of consumers and the municipalities to reach a rate agreement (H.B. 2561, 82d Gen. Ass., 1982 Sess.).

The amicus curiae cites three cases from the courts of other jurisdictions which have held that municipally owned utilities serving customers outside their corporate limits are subject to State regulating agencies. However, those cases are inapposite to the present case since the courts there were interpreting statutes unlike the Illinois Public Utilities Act. In Borough of Ambridge v. Pennsylvania Public Utility Com. (1939), 137 Pa. Super. 50, 8 A.2d 429, the relevant statute specifically provided authority to the commission to regulate and control utility services rendered by a municipal corporation beyond its corporate limits; in In re Complaint by Morris Township (1967), 49 N.J. 194, 229 A.2d 516, there was no statute which expressly excluded the regulation of water rates by municipally owned utilities from the authority of the Board of Public Utility Commissioners; and in City of Lamar v. Town of Wiley (1926), 80 Colo. 18, 248 P. 1009, the statutory definition of public utility included private as well as municipal corporations which were engaged in serving the public with light and power.

For the reasons stated, we find that the ICC does not have jurisdiction over Palatine’s acquisition of the Ferndale facilities or its proposed water rates to the former customers of Ferndale. Accordingly, we reverse the order directing Palatine to seek the approval of the Ferndale acquisition and the proposed water rates and remand this cause for further proceedings consistent with this opinion.

Reversed and remanded.

LORENZ and WILSON, JJ., concur.

       Ferndale, as co-defendant, is not involved in this appeal.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL THOMPSON, Defendant-Appellant.
    Second District
    No. 80-834
    Opinion filed June 30, 1982.
    Mary Robinson, of State Appellate Defender’s Office, of Elgin, and Frank J. Giampoli, of Geneva, for appellant.
    Phyllis J. Perko and Gene Armentrout, both of State’s Attorneys Appellate Service Commission, of Elgin, for the People.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant Daniel Thompson was charged with the offenses of armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 33A — 1, 33A — 2), attempt murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4, 9 — 1), and attempt armed robbery (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4, 18 — 2). A jury in Winnebago County found defendant not guilty of attempt murder but guilty of aggravated battery (deadly weapon) (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4), armed violence and attempt armed robbery. Defendant was sentenced for the armed violence conviction alone to a determinate term of 15 years in the Illinois Department of Corrections.

The record reveals that just before 7 o’clock in the evening on February 18, 1980, two men entered an Ace Hardware store in Rockford. There were four people already in the store. Two employees, Marilyn Jones and her son, Michael, were near the front. Charles Wells, another employee, and Calvin Wright, a patron, were at the rear. The testimony of these four individuals was substantially the same: The men, one of whom was identified as the defendant, walked to the rear of the store and returned to the front near the cash register. Defendant pulled a small silver gun from his coat, pointed the gun at Marilyn Jones and asked for money. She responded by saying, “You’ve got to be kidding.” Michael Jones was kneeling down to light a kerosene heater near the cash register. As he stood up, he told his mother to give the man the money. As he spoke, defendant shot him in the stomach. Defendant then shot at Marilyn and the bullet passed through her smock but did not hit her. Both men fled to an awaiting car without taking anything.

Michael started to follow them with a shotgun but came back into the store within seconds after realizing he had been shot. Charles Wells, who had been at the rear of the store, took up the chase. He caught up with one of the men he thought was the robber at a gas station. He fired the shotgun twice at him and co-defendant Emanual Jefferson was slightly injured.

Officer Palmeri testified that he arrested defendant at about midnight, the same evening, and brought him back to the Rockford police department. There he informed defendant of his Miranda rights. Officer Palmeri indicated on the rights waiver form that defendant refused to sign it. He then asked defendant about the crime and defendant denied any involvement. Officer Palmeri told defendant the co-defendants were making incriminating statements about him. Defendant said that he did not believe Palmeri and he was asked if he wanted to see the co-defendants. He was taken to the room where one of the co-defendants was being questioned and allowed to see him. Palmeri then brought defendant back to the interviewing room and another co-defendant, Smith, appeared in the doorway. At this time defendant stated that he would kill him for “squealing” on him. Co-defendant Smith was then taken away. This statement was not introduced against defendant at trial.

Soon after this confrontation defendant asked Palmeri what he was going to be charged with. Palmeri told him that he was going to be charged with armed robbery and attempt murder. Palmeri testified that defendant’s reply was, “Attempted murder, I should have killed him.” The officers then asked defendant if he wanted to make a written statement and defendant said that he was not involved.

The trial court ruled that defendant’s statement, that “I should have killed him,” was admissible and defendant’s motion to suppress was denied. The court did grant defendant’s motion for severance.

Defendant testified that he was not involved in the incident and that he had been alone at his girlfriend’s house. Defendant’s explanation for why he made the statement was that he was referring to co-defendant Dwight Smith, who had implicated him in the case. Defendant contended that he had repeatedly asserted his right to remain silent.

Defendant raises five issues on appeal. Three of those issues involve the introduction into evidence of the above described statement. He also contends that his sentence was excessive and that the armed violence statute is unconstitutional.

Defendant first contends that his motion to suppress should have been granted so as to disallow admission of the statement he made to Officer Palmeri. Defendant urges that his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, were violated because he was questioned after he refused to sign the waiver of rights form. Officer Palmeri testified that he read defendant his rights soon after he was taken into custody. Although defendant had refused to sign the rights form he was asked about the crime. He denied any involvement. The trial court ruled that the statement was admissible because the defendant had been read his rights but then he said he wanted to confront a co-defendant. Because of this, the court ruled, defendant’s statement “I should have killed him” was spontaneous. Defendant’s motion to suppress was denied.

Defendant contends that the officers violated his Miranda rights by interrogating him after he refused to sign the form and after he had stated that he did not wish to talk.

The State argues that defendant did not indicate his desire to remain silent until after the confrontation with co-defendant and after the statement in issue had been made. Therefore, it is urged, because the mere refusal to sign a “rights” form is an insufficient indication of defendant’s desire to stop interrogation, the subsequent statements were properly admitted because defendant had not invoked his Miranda rights. People v. West (1975), 25 Ill. App. 3d 827, 322 N.E.2d 587; People v. Starnes (1972), 8 Ill. App. 3d 709, 289 N.E.2d 264.

Our review of the record clearly indicates that the trial court made a finding that defendant did assert his desire to remain silent. The trial judge, in ruling on the motion to suppress, stated:

“He says he was not advised of his rights but this officer said— police officers say he was advised of his rights. The Defendant, Palmeri stated, that he had the rights waiver which he read to him but he refused to sign it. I would believe that that probably happened.
There was some attempt to question him. He said he did not wish to talk. The question is, should the officer then have completely abandoned this attempt to talk with Mr. Thompson and put him back in his cell.
During this period, apparently it came to pass that the Defendant, Daniel Thompson, said he would be willing to confront Dwight Smith and I think there is nothing untoward in this by the police officers.
They took Daniel Thompson to confront Dwight Smith and I believe the statements that were made at that time by Daniel Thompson were without any question were spontaneous on his part and I believe were admissible.
Therefore, the motion to suppress statements by Daniel Thompson are denied.” (Emphasis added.)

The record shows that defendant asserted his right to remain silent; was asked by the police if he wanted to see co-defendants who were “squealing” on him; threatened a co-defendant; asked what crime he was charged with and responded by saying “I should have killed him.” Under these circumstances, we believe defendant’s statement was neither spontaneous nor voluntary.

Once it has been established that defendant asserted his right to remain silent, subsequent efforts at interrogation must cease. As the court in Miranda stated: “At this point he has shown that he intends to exercise his fifth amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” (Miranda v. Arizona (1966), 384 U.S. 436, 474, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627-28.) The confrontation with co-defendants evoked a response that was inadmissible and was the result of the type of police practices that Miranda was designed to protect against.

In the recent case of Rhode Island v. Innis (1980), 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308,100 S. Ct. 1682, 1690, the Supreme Court stated: “A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.”

In People v. Faison (1979), 78 Ill. App. 3d 911, 397 N.E.2d 1233, the court outlined the circumstances when interrogation can be resumed after an individual has exercised his right to remain silent. It noted that interrogation may be resumed after a complete cessation of questioning for a significant time only if Miranda warnings have been repeated, so that the person in custody can exercise his right to remain silent, if he so chooses, at the outset of the second period. Questioning by a different officer or questioning on a different subject matter is further indication that a defendant’s rights were scrupulously honored.

Similarly, the passage of time can be significant in determining whether a defendant’s rights were scrupulously honored. People v. Fleming (1981), 103 Ill. App. 3d 194, 431 N.E.2d 16.

We are aware that statements made by a defendant after being advised of his rights can be admissible, if voluntarily given. (People v. Dees (1977), 46 Ill. App. 3d 1010, 1022, 361 N.E.2d 1126.) Dees was a bench trial case where certain statements of defendant were held, on appeal, to be admissible because they were made before defendant asserted his fifth amendment right, and no question was pending. Unlike Dees, the record in the case before us makes it clear that defendant asserted his right to remain silent prior to the question about seeing co-defendant. Applying Innis to the case before us, we conclude that the police practices employed here constituted a continuing interrogation. For these reasons we believe the statement made by defendant was improperly admitted into evidence. Therefore this cause is reversed and remanded for a new trial.

Because of this conclusion, we do not consider the other contentions raised by the defendant.

Reversed and remanded.

UNVERZAGT and VAN DEUSEN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAUL VEGA, Defendant-Appellant.
    Second District
    No. 81-106
    Opinion filed June 30, 1982.

      Mary Robinson and Manuel Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

On August 30, 1980, defendant, Raul Vega, shot Rudy Najera five times with a .45-caliber pistol, causing his death. Both men had earlier been drinking in the Saenz Cafe in Rochelle, Illinois, where an altercation had arisen between them. The cafe’s proprietor had asked the defendant to leave, and defendant had done so. Najera left the cafe a few minutes later. Shortly thereafter, defendant and Najera were observed facing each other over the trunk of a parked car. A short conversation took place, and then defendant fired.

The defendant was found guilty after a jury trial of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(1)) and sentenced to 20 years’ imprisonment. On appeal, he contends that he was impaired in his ability to present his theory of self-defense to the jury by rulings of the trial court which excluded evidence that the victim had a history of arrests for offenses involving violence. Defendant also contends that the trial court erred in refusing defendant’s tendered issues instructions for the offense of murder.

Defendant testified on his own behalf that he had known Najera since 1974. During that time, Najera had beaten him on four occasions, the first of which required his hospitalization. Najera had threatened defendant practically on a daily basis between 1974 and 1976, and on approximately 100 occasions thereafter. Najera would also bump into defendant’s car with his vehicle. Defendant responded in the affirmative when he was asked if he knew of Najera’s ever having problems with the police for any type of crime, and stated he knew that Najera had cracked the skull of one man and broken the nose of another. Defendant’s brother testified that his life had also been threatened by Najera.

Defendant testified that he was in the Saenz Cafe on August 30, when Najera called him over and said some ugly things about his mother. Defendant responded by slapping Najera, but afterwards became apprehensive that the other man would retaliate. The defendant saw Najera approach an individual named Osman, who defendant knew to have a gun, and thought that Osman gave Najera a weapon. Defendant left the cafe when he was asked to leave by the proprietor. As defendant walked away, Najera approached him, claimed to have a gun, and said that he would kill the defendant. Najera’s right hand was concealed in his pants pocket, and defendant, who believed that Najera was armed, shot him five times.

Defendant contends that the trial court denied him a fair trial as to his claim of self-defense by refusing to allow evidence concerning Najera’s arrest record. The evidence sought to be adduced was testimony from Detective Dennis Leifheit of the Rochelle Police Department that Najera was also known by the name of Armando Arrendondo, and that Najera had a record of several arrests under that alias. These arrests, none of which had resulted in convictions, were for the offenses of criminal damage to property over $150, burglary, fighting, reckless driving, unlawful possession of cannabis and battery. In addition, Najera had been arrested for aggravated battery in 1974 and for two other counts of aggravated battery in 1979. Defendant argues that such evidence should have been admissible as tending to establish the reputation or character of the victim for turbulence and violence in a case where the issue of self-defense has been raised.

“It is well established that where a claim of self-defense is made, and at the time of the incident the accused knew of the victim’s reputation for violence or knew of specific violent acts by the victim, proof of such reputation or acts together with the accused’s knowledge thereof is relevant and admissible to establish the reasonableness of the accused’s apprehension of danger.” People v. Wolski (1980), 83 Ill. App. 3d 17, 29, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 339, 101 S. Ct. 1356.

This evidence is admissible as tending to show the defendant’s state of mind, and thus the character trait of the victim which is sought to be elicited must be one of which the defendant was aware. “Thus the law in Illinois still requires the exclusion of evidence of a victim’s propensity for aggression unless the accused knew the victim had that trait.” (83 Ill. App. 3d 17,30.) Here, the defendant testified that he was aware that Najera had trouble with the police but did not claim an awareness of the other man’s arrest record. Under the rule in Wolski (83 Ill. App. 3d 17), the testimony in question was properly excluded.

Even were we to determine that the evidence here in question was erroneously excluded, we would find the error to be harmless beyond a reasonable doubt in light of the fact that the trial court admitted substantial evidence concerning the victim’s violent acts. (See People v. Buchanan (1980), 91 Ill. App. 3d 13.) This evidence included testimony that Najera had engaged in a pattern of threats and violence toward defendant over many years, and that Najera had inflicted serious injuries upon others. In view of the amount and the detail of this testimony, evidence concerning Najera’s arrest record would have been merely cumulative.

Defendant also contends that the trial court erred in refusing his tendered issues instructions for the offense of murder. The jury in this case was given an issues instruction on murder which listed the following as the essential propositions required to sustain the charge of murder:

“FIRST: That the defendant performed the acts which caused the death of Rudolfo Najera;
SECOND: That when the defendant did so, he intended to kill or do great bodily harm to Rudolfo Najera; and THIRD: That the defendant was not justified in using the force he used.”

At the conference on instructions, defendant tendered and the trial court refused to give two alternative issues instructions which added an additional proposition: that the defendant did not believe that circumstances existed which justified the use of the force which he used. The jury was also instructed as to the offense of voluntary manslaughter (defendant’s instructions Nos. 13 and 14), in accordance with Illinois Pattern Jury Instructions, Criminal, Nos. 7.05 and 7.06 (2d ed. 1981) (hereinafter cited as IPI Criminal). These instructions informed the jury that voluntary manslaughter is committed when, at the time of the killing, the defendant believes that circumstances exist which would justify the killing, but the defendant’s belief that such circumstances existed was unreasonable. The jury thereafter found defendant guilty of murder, but left the verdict forms for manslaughter unsigned.

Defendant contends on appeal that the language contained in the fourth proposition of his tendered issues instructions on murder was necessary in order to delineate the relationship between the offenses of murder and voluntary manslaughter, and that the trial court’s failure to instruct the jury in this regard was prejudicially erroneous under the circumstances of this case. The State replies that the instructions taken as a whole were sufficient to inform the jury of the law to be applied to this case, and that the language in question was superfluous when, as here, the jury was instructed on the elements of murder and voluntary manslaughter.

The language of the defendant’s tendered issues instructions was based on IPI Criminal No. 27.01 (1968), a sample set of jury instructions for a case where murder, voluntary manslaughter and self-defense have been raised. Initially, it should be noted that the fourth proposition here in question has been removed from the sample set of instructions contained in the second edition of IPI Criminal.

In People v. Stuller (1979), 71 Ill. App. 3d 118, the jury was instructed both as to murder and voluntary manslaughter and returned verdicts of guilty as to both offenses. The issues instruction for murder failed to include the fourth proposition which is at issue here, which the court referred to as “a crucial element of the murder instruction 0 ” (71 Ill. App. 3d 118, 121.) “The manifest purpose of this element of the murder instruction is to make the jury aware of the distinction between the crimes of murder and voluntary manslaughter * * (71 Ill. App. 3d 118, 122.) The court noted that the jury, by returning a guilty finding as to voluntary manslaughter, had found defendant to have been acting under an actual but unreasonable belief that the killing was justified. Since the erroneous omission of the fourth proposition from the court’s instructions permitted the jury also to find defendant guilty of murder under these circumstances, defendant had been prejudiced, and only the conviction for voluntary manslaughter could stand.

People v. Stutter (1979), 71 Ill. App. 3d 118, was distinguished in People v. Perez (1981), 100 Ill. App. 3d 901, wherein the jury found the defendant guilty of murder and not guilty of voluntary manslaughter, and the court found that the latter fact betokened a rejection by the jury of any claim that defendant reasonably or unreasonably believed that his use of force was justified. “Thus, the omission of the fourth proposition of instruction No. 27.01 did not affect the jury’s deliberation on the issue of murder.” (100 Ill. App. 3d 901, 908.) The court in Perez, therefore, concluded that no plain error had occurred.

The omission of the fourth proposition from the issues instruction on murder was also discussed in People v. Bergeron (1973), 10 Ill. App. 3d 762. In that case, the defendant was found guilty despite his claim of self-defense. It does not affirmatively appear in the record that a voluntary manslaughter instruction was given, but the jury was instructed as to self-defense, a question as to which defendant’s belief that his use of force was justified was a pertinent consideration. The trial court refused to incorporate a proposition concerning this question, phrased in identical language to the fourth proposition offered here, into the issues instruction on murder. However, the court noted that the self-defense instruction informed the jury that, “ ‘A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend him against the imminent use of unlawful force. * * (People v. Bergeron (1973), 10 Ill. App. 3d 762, 770.) This instruction was deemed to have apprised the jury of the law governing the justifiable use of force and, when read together with the issues instruction on murder, adequately to have set out the law of the case. The court, therefore, found that the issues instruction on murder which incorporated the fourth proposition here in question was properly refused.

Finally, the State briefly discusses People v. Lockett (1980), 82 Ill. 2d 546, containing the supreme court’s most recent discussion of the instructions to be given in a murder case where voluntary manslaughter and self-defense have been placed in issue. The State notes that the court there failed to require that an instruction incorporating the fourth proposition be given under such circumstances. However, that issue was not before the court in Lockett.

In the present case, the instruction requested by the defense was an accurate statement of the law. However, where the concept sought to be conveyed by the requested instruction was adequately communicated to the factfinder by the instructions defining and delineating the elements of voluntary manslaughter so that the instructions as a whole informed the jury of the law to be applied, it may be concluded that no error occurred. (See generally People v. Bergeron (1973), 10 Ill. App. 3d 762.) In view of the deletion of this language from the revised IPI Criminal No. 27.01, we would be inclined to treat the refusal of defendant’s instructions Nos. 12 and 18 as correct were it not for People v. Stuller (1979), 71 Ill. App. 3d 118. Although the State attempts to treat that case as an inconsistent verdicts case, that opinion unmistakably brands as error the failure to instruct the jury as to the fourth proposition of the former sample pattern issues instruction on murder. But whether or not a failure to give such an instruction is error, the law regards it as reversible error only when the accused has thereby been prejudiced. Such prejudice was apparent in People v. Stuller (1979), 71 Ill. App. 3d 118, because the jury found the defendant guilty of murder when its finding of guilty of voluntary manslaughter indicated its apparent conclusion that defendant believed his use of force was justified.

Where it appears that the jury found no such belief on defendant’s part, shown by its finding defendant not guilty of voluntary manslaughter while finding him guilty of murder, reversal has not been required. (People v. Perez (1981), 100 Ill. App. 3d 901.) That case was decided in the context of review for plain error, but the language of the opinion forecloses any possibility that reversible error could be found on the facts of that case, even if the matter has been preserved for review. Defendant would distinguish that case on the basis that the jury there found the defendant not guilty of voluntary manslaughter, while in the instant case no verdict as to voluntary manslaughter was returned. Defendant concludes that it therefore cannot be said that the jury considered the question of defendant’s unreasonable belief that the killing was justified. However, the jury was instructed that it was not to single out certain instructions and disregard others. Although the jury did not return a verdict as to voluntary manslaughter, it should, nevertheless, be presumed that the jury acted in accordance with the judge’s instructions. Thus, we view as untenable defendant’s contention that the record must affirmatively reflect that the jury considered the issues instruction for voluntary manslaughter as a prerequisite to finding no prejudice from the instructional deficiency here alleged.

For the reasons stated, the judgment of the circuit court of Ogle County is affirmed.

Judgment affirmed.

NASH and VAN DEUSEN, JJ„ concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MILTON D. BATCHELDER, Defendant-Appellee.
    Third District
    No. 81-578
    Opinion filed July 8, 1982.
    Rehearing denied September 3, 1982.
    HEIPLE, J., specially concurring.
    Gary L. Morris, Assistant Corporation Counsel, of Peoria, for the People.
    No brief filed for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal by the prosecution of a defendant’s acquittal of drunken driving. The defendant-appellee entered no appearance in the appeal and filed no brief. The appellant did not request oral argument. Accordingly, this appeal was taken for consideration and disposition on the brief of the appellant.

What in fact happened in this case was that a police officer stopped a car for erratic driving and asked the driver if he had been drinking. The driver responded, “Yes, I’m drunk.” When the officer attempted to testify to this conversation, the trial judge sustained an objection because the defendant had not been given his Miranda rights. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) The prosecution, on the sustaining of this objection, requested an interlocutory appeal, which was refused. Over objection of the prosecution, the trial continued without this incriminating evidence, and a judgment of acquittal was entered.

The threshold question is whether appellate jurisdiction attaches. It does not. The prosecution’s right to appeal in criminal cases is controlled by the language of Supreme Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)), which provides in pertinent part:

“In criminal cases the State may appeal only from an order or judgment, the substantive effect of which results in dismissing a charge for any of the grounds enumerated in Section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.”

There was no dismissal in this case. The trial court entered an order with a finding of “not guilty” at the close of the trial. This order constitutes an acquittal of Batchelder and is not appealable. Ill. Const. 1970, art. VI, sec. 6; Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(a)(1).

Having determined that this court does not have appellate jurisdiction, we therefore dismiss this appeal.

Appeal dismissed.

BARRY, P. J., concurs.

JUSTICE HEIPLE,

specially concurring:

I agree with the dismissal of the People’s appeal for the reasons stated in the majority opinion. The opinion is remiss, however, in failing to point out the trial judge’s error. It deserves to be pointed out because the judge’s error resulted in the acquittal of an obviously guilty drunken driver. Thus, justice has miscarried.

The effect of the trial judge’s ruling was devastating to the prosecution’s case. Defendant’s statement, “* ” ” Yes, I’m drunk.® 6 ®” was, figuratively, the cap on the bottle. The evidence of defendant’s erratic driving, coupled with his admission of drunkenness, would most certainly have resulted in a conviction.

The prosecution claims that the court’s ruling is, in reality, the granting of a motion to suppress. If it were that type of ruling, it would be reachable by an interlocutory appeal. It is not such a ruling. The objection was not raised by way of a motion to suppress. It was raised during trial as an evidentiary objection. Thus, it is not appealable.

The prosecution raises the point that the ruling of the trial court was erroneous. Indeed, it was. A fair reading of Miranda v. Arizona does not lead one to believe that the principles therein enumerated were intended or designed to apply to informational questioning by a traffic officer at the scene of a traffic stop which are related to the facts and circumstances surrounding the stop. This needs to be pointed out even though, for constitutional reasons of double jeopardy, the appellate court is unable to grant the prosecution the new trial requested by this appeal. Routine questions following a proper traffic stop are not the type of custodial interrogation envisioned by Miranda. The detention in the instant case was merely investigatory and not custodial in nature and, as such, did not require the giving of the Miranda warnings. (See People v. Tate (1970), 45 Ill. 2d 540; Allen v. United States (D.C. Cir. 1968), 390 F. 2d 476; State v. Dubany (1969), 184 Neb. 337, 167 N.W. 2d 556.) Thus, Judge Whitney’s ruling was wrong. An obviously guilty defendant was erroneously acquitted.

The defendant in this case was represented before Judge John Whitney by attorney Robert Jones of Peoria. Earlier this year, in the case of People v. Louis C. White, Docket No. 81-413, in a nonpublished special concurring opinion, I had another occasion to point out a gross error of this same judge. Attorney Jones was also representing the defendant in that case. It, too, involved dismissal of the prosecution’s appeal because the matter was procedurally nonappealable. It, too, resulted in a miscarriage of justice. A guilty man was acquitted because of an erroneous ruling by Judge Whitney.

That case involved a prosecution for driving with a suspended license. It was a bench trial. During the prosecution’s case, the prosecuting attorney offered a certified document from the Illinois Secretary of State which showed that the defendant’s driver’s license was suspended on the day in question.

Attorney Robert Jones, representing the defendant, offered the pettifogging objection that the police officer who was testifying did not know when the document had arrived at the police station, nor how it got there, nor if it arrived in an envelope sealed or otherwise, nor if it did arrive in an envelope, who extracted it from the envelope or initially received the envelope, or whether the envelope itself bore postage or purported to be sent by the Secretary of State, or what happened to the envelope after it was received. This is a chain of custody type objection which is wholly immaterial to the offer of a certified document. Regrettably, the judge swallowed it and sustained the objection to the admission of the document. Given that ruling, the prosecution’s case was in total collapse and the defendant was accordingly acquitted.

In my concurring opinion, I directed Judge Whitney’s attention to Cleary’s Handbook of Illinois Evidence, specifically section 901.2 dealing with chain of custody and section 902.2 dealing with certified copies of public records and the numerous cases therein cited. E. Cleary and M. Graham, Handbook of Illinois Evidence secs. 901.2, 902.2 (3d ed. 1979).

All the king’s horses and all the king’s men could not put Humpty-Dumpty back together again. So it is with trials. Many errors which occur at the trial level are simply not reachable on appeal. A calculating defense attorney and a complaisant judge can converge in cases to defeat the administration of justice. That such happened in the cases discussed above is obvious. I point this out in the interest of justice.


text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Plaintiff-Appellee, v. JOHN T. CONNELLY et al., Defendants-Appellants.
    First District (4th Division)
    No. 81-1702
    Opinion filed June 3, 1982.

      Dennis G. Kral, Ltd., of Chicago, for appellants.
    Liebling & Hauselman, of Chicago (Martin F. Hauselman and Patricia O’Brien Norum, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The validity of a claim filed under the Illinois Mechanics’ Lien Act on multiple parcels of property is the subject of this action. (Ill. Rev. Stat. 1979, ch. 82, par. 7.) The trial court on the pleadings found the claim invalid and subordinated it to that of the mortgagee, First Federal Savings & Loan Association.

This litigation began when First Federal filed a mortgage foreclosure action against John T. Connelly to foreclose on a four-unit apartment building located at 15647 Greenwood, Dolton, Illinois. Henry B. Rossi, Jr., d/b/a Kensington Carpet & Rug (Rossi), was named a defendant. Rossi filed an answer and a counterclaim seeking a declaration that his mechanics’ lien had priority over the lien of the mortgagee, First Federal.

On January 15, 1980, approximately six months before First Federal filed this foreclosure action, Rossi entered into an oral agreement with Connelly to supply and install carpeting in four apartment buildings. The property involved in this action, an apartment building at 15647 Greenwood, was one of these parcels. Rossi installed the carpet as one contract for a total cost of $12,102.

Rossi alleged he completed the entire installation in the four buildings on March 15, 1980, and then requested payment from Connelly. When payment was not forthcoming, Rossi filed a mechanics’ lien statement on June 3,1980, less than three months after the completion of the contract, one month before the plaintiff instituted the foreclosure action and six months after the contract.

The specific language of Rossi’s filing statement is relevant here. Rossi listed the four buildings separately as follows:

“1521 Berg Dr., Dolton, Illinois 1527 Berg Dr., Dolton, Illinois 15641 Greenwood, Dolton, Illinois 15647 Greenwood, Dolton, Illinois.”
(Emphasis added.)

Below this listing, Rossi inserted the following information: that “on or about Jan. 15, 1980,” he had made a contract with John T. Connelly to “install wall-to-wall carpeting for the sum of $12,102,” and that “on or about Mar. 15,1980 * * * all work required namely delivery and installation of said wall-to-wall carpeting” was completed. In this statement, Rossi did not specify the exact date of completion for each separate building or apportion the costs between the four buildings. Thus, there is no specific completion date for the work done on 15647 Greenwood or the specific amount of the lien on this particular building.

First Federal then filed a motion to have Rossi’s mechanics’ lien declared subordinate to their mortgage because of defects in the mechanics’ lien including a failure to partition the cost between the buildings and a failure to provide completion dates for each building. The trial court concluded that Rossi’s claim for a lien did not satisfy the filing requirements of the Illinois Mechanics’ Lien Act (Ill. Rev. Stat. 1979, ch. 82, par. 7) and entered an order adjudicating Rossi’s lien subordinate and inferior to First Federal’s first mortgage.

The pertinent language of section 7 of the Rlinois Mechanics’ Lien Act is summarized and paraphrased below:

No contractor shall be allowed to enforce a lien against or to the prejudice of any encumbrancer, unless within “4 months” after completion, he shall file a claim for a lien verified by an affidavit consisting of a “brief statement of the contract,” “the balance due” and “a sufficiently correct description of the lot, lots or tracts of land to identify the same.” “In the event the contract relates to 2 or more buildings on 2 or more lots or tracts of land, then all of these buildings and lots or tracts of land may be included in one statement of claims for a lien.”

Two issues are presented for review. The first issue is whether the trial court erred in adjudicating Rossi’s mechanics’ lien subordinate and inferior to First Federal’s first mortgage. The second issue is whether the trial court erred in denying Rossi an equitable lien priority against First Federal.

Rossi argues that his lien is not defective because he complied with the exact requirements set out in the statute. Specifically, he filed his claim for a lien within four months after completion of the work. His verified affidavit consisted of a brief statement of the contract, the balance due and what Rossi contends is a sufficiently correct description of the lots to “identify the same”; i.e., the specific address of each building involved in the claim. As the statute allows, he included his claims for liens against each separate building in one filing statement.

First Federal argues, and the trial court agreed, that judicial construction of section 7 as it relates to a single filing involving multiple parcels has added two additional requirements which must be adhered to if a lien claimant is to successfully enforce a mechanics’ lien against a prior encumbrancer. One requirement is that the lien claimant disclose the exact date of the completion of the work on each parcel, and the other requirement is that the lienor must apportion the cost of the work on each parcel and include this information in the statement. First Federal cites Schmidt v. Anderson (1911), 253 Ill. 29, 97 N.E. 291.

In Schmidt, a blanket lien was filed on four parcels of property. As in the instant case, the lien did not specify when the work was completed or apportion the amount claimed as to each parcel. In Schmidt, the work on three of the parcels had been completed over six months before the blanket lien was filed and thus outside the four-month statutory period for filing such claims. The work on the fourth parcel had been completed and the lien filed within the necessary statutory period. However, even though the fourth lien was still viable as a matter of fact, the court declared the blanket lien defective as it related to all four parcels.

Schmidt decided two issues. First, the court held that mechanics’ lien claims are to be filed within four months of their completion and that by virtue of this blanket lien provision a lien claimant may not bootstrap an otherwise invalid lien into becoming a valid lien. The court’s second finding relates more directly to the instant case because the court invalidated a lien filed within four months in a blanket lien situation. The court reasoned that third persons dealing with the property should have notice of the existence, nature and character of the lien in order to correctly determine whether such a claim could be enforced. The court stated that a lien could not be enforced if it did not contain data on the apportionment of cost to each parcel or specify when the last work was performed on each of the parcels involved.

Rossi argues that Schmidt is factually distinguishable from the instant cause because in Schmidt the blanket lien included viable and stale claims. Rossi contends that his blanket lien only covers viable claims properly filed within the four-month statutory period.

Although Schmidt is factually different than the instant case for the reasons stated by Rossi, it is not legally distinguishable. Rossi does not state and we do not see a rationale that supports a legal distinction. The rationale in Schmidt is that a third person dealing with the property should be able to learn from looking at the lien whether a lien exists and in addition the nature and character of the lien. (Schmidt v. Anderson (1911), 253 Ill. 29, 32, 97 N.E. 291, 292.) Such information is implicit in liens dealing with single parcels of property. An examination of a blanket lien, such as Rossi’s, would not reveal to a third person whether the hen includes stale claims or the amount that could be apportioned to each parcel that has a viable claim on it. Thus, a potential purchaser or mortgagee would be unable to determine from a blanket lien such as Rossi’s, which does not give a completion date and apportion the cost to each parcel, the existence, nature or character of the lien and consequently would not be able to pay the lien or provide an escrow for it. See In re Phillips Construction Co. (N.D. Ill. 1977), 434 F. Supp. 26, rev'd on other grounds (7th Cir. 1978), 583 F.2d 290.

Rossi’s second contention on appeal is that the trial court was in error when it failed to grant him an equitable lien priority on any proceeds from the sale of the building. We believe the law in Illinois is clear that lien rights created by the Mechanics’ Lien Act are entirely governed by the Mechanics’ Lien Act and not by the rules of equity jurisdiction. Therefore, no equitable lien will apply if the lienor fails to perfect his mechanics’ lien. Wingler v. Niblack (1978), 58 Ill. App. 3d 287, 374 N.E.2d 252; Hill Behan Lumber Co. v. Marchese (1971), 1 Ill. App. 3d 789,275 N.E.2d 451.

For the above reasons the decision of the trial court is affirmed.

Affirmed.

JOHNSON, P. J., and ROMITI, J„ concur.