author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH L. PETERSEN, Defendant-Appellant.
    Fourth District
    No. 17683
    Opinion filed November 30, 1982.

      Roger W. Thompson, of Lincoln, for appellant.
    Robert J. Barry, State’s Attorney, of Lincoln (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Following a jury trial, the defendant was found guilty of the offenses of reckless homicide and leaving the scene of an accident involving death. Judgment was entered only on the reckless homicide count, and defendant was sentenced to six months’ imprisonment in the Logan County jail, placed on 30 months’ probation, and ordered to pay court costs in the amount of $445.60.

On appeal, the defendant contends that the police illegally entered a portion of the premises where he resided in search of a hit-and-run vehicle, that his warrantless arrest in his home was unconstitutional and that his automobile was illegally seized by police. Therefore, defendant argues that statements which he made while in custody and the results of an intoxilyzer test administered after his arrest, as well as evidence removed from his automobile, should have been suppressed. Defendant further asserts that since the evidence which led police to believe that his automobile was the car involved in a hit-and-run accident was obtained as a result of a violation of his fourth amendment rights, there was insufficient probable cause for the issuance of a warrant for the performance of skid tests with his automobile, and that, therefore, the results of such tests should also have been suppressed. Defendant finally contends that a gruesome color slide of the victim’s body as found at the accident scene should not have been admitted into evidence, and that he was not proved guilty of reckless homicide beyond a reasonable doubt.

At approximately 10:45 p.m. on the evening of August 10, 1981, Trooper Daniel Fruge of the Illinois State Police observed a male body lying on the left side of Ottawa Street in Lincoln. Fruge stopped his vehicle and checked the man’s neck and wrists for a pulse, but could not find one. The man was subsequently pronounced dead at the scene and was identified as Ralph E. Lawrence. He had apparently been struck with great force by a motor vehicle, for his body was badly mangled. Fruge immediately notified the Lincoln Police Department, as well as Illinois State Police headquarters, of his discovery. Sergeant William Ritter, Fruge’s shift supervisor, was the first to respond to Fruge’s call for assistance. He conducted an on-the-scene interview with three witnesses who had seen a gold Monte Carlo with a shattered windshield and heavy front-end damage driving away from the scene of Lawrence’s death. In the meantime, the Lincoln police department dispatcher received an anonymous telephone tip that the suspected hit-and-run vehicle was at defendant’s residence. This information, along with that obtained during Ritter’s interview with the three witnesses at the scene, was then broadcast to police cars which were patrolling the city.

Officer Duff Starr and Sergeant Larry Hill, both of the Lincoln police department, heard the dispatch relating to the suspected hit- and-run vehicle and arranged to meet each other at defendant’s residence, which was a duplex. Sergeant Hill was the first to arrive at defendant’s home. He drove his squad car to the back of the duplex and positioned it so that he could see the front end of a heavily damaged automobile parked parallel to a set of railroad tracks which ran alongside the duplex. The car’s windshield was partially shattered, the right front grill area was badly smashed, and what appeared to be blood was splattered over the rear of the car. The area surrounding the car was fairly well lit, but Hill nevertheless shined his flashlight on the car in order to view it. Although the suspect vehicle was registered in the name of Lester K. Petersen (defendant’s father), Hill was able to associate the car with defendant, whom he had previously seen driving it. Officer Starr stated that when he arrived at defendant’s home, he had to walk to the back of the duplex in order to. fully observe the damage to the Monte Carlo, although the rear three quarters of the car was visible from the street.

After viewing the damaged vehicle, Starr and Hill went to the rear door of defendant’s residence. The door apparently consisted of clear glass, and they could see defendant inside. Sergeant Hill knocked on the door and defendant opened it, stepped back, and allowed Hill to enter. Hill asked the defendant if he had had an accident, to which defendant responded in the affirmative. Hill then took two or three steps into the residence, and advised defendant that he would have to go the Logan County Public Safety Complex for further investigation. Officer Starr then transported defendant to the complex and Hill remained at the defendant’s residence.

Sergeant William Ritter of the Illinois State Police subsequently arrived at defendant’s residence and stayed with the vehicle until Corporal Brown from the Vehicle Identification Bureau arrived. Detective Vonderahe of the Lincoln police department was also present during this time period and took some photographs of the Monte Carlo. At approximately 1 a.m. on the morning of August 11, 1981, Corporal Wellenkamp, a crime scene technician, arrived. He collected three additional pieces of evidence from the vehicle and took some additional photographs of it. He and Corporal Brown then supervised the towing of the car to an enclosed commercial garage.

We first consider defendant’s contention that the warrantless entry of police on the premises where he resided, for the purpose of viewing the suspect vehicle, was illegal. The threshold question which must be answered is, of course, whether the defendant had a legitimate expectation of privacy in the area where the police viewed the Monte Carlo. (See Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.) The constitutionally guaranteed right to be free from warrantless searches extends to the areas of a yard surrounding a dwelling in which the residents have a reasonable expectation that they will be free from unannounced intrusions. (See, e.g., Wattenburg v. United States (9th Cir. 1968), 388 E2d 853.) One does not, however, have a legitimate expectation of privacy in areas surrounding a residence which are visible from neighboring lands (see State v. Pontier (1974), 95 Idaho 707, 518 P.2d 969), even if it necessary to stand on one’s toes or lean around the side of a partition in order to view the area in question. (United States v. McMillan (D.D.C. 1972), 350 F. Supp. 593.) For this reason, a police officer may enter an unenclosed driveway to obtain a closer look at an automobile which is partially visible from the street without violating any reasonable expectation of privacy. See United States v. Humphries (9th Cir. 1980), 636 F.2d 1172.

At times, even one’s privacy interest in a portion of a premises which is normally subject to fourth amendment protections must yield to compelling public necessity. For instance, police may make a warrantless entry of a house while in hot pursuit of an armed robber (Warden v. Hayden (1967), 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642), and may enter a dwelling without a warrant to prevent the imminent destruction of evidence (Ker v. California (1963), 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623). In this respect, a case strikingly similar to the case at bar is People v. Morrow (1982), 104 Ill. App. 3d 995, 433 N.E.2d 985. There, two rape victims provided police with a description of the car in which they had been abducted and identified the garage where some of the rapes took place. The rapes occurred between the hours of 3 and 7 a.m., and police, accompanied by the victims, arrived at the garage at about 11 a.m. the same morning. The yard in which the garage was located was enclosed by a fence which ran along the rear lot line. A detective entered the yard through a gate in the fence. The record did not disclose whether the gate was closed or open at the time of the detective’s entry. The detective looked into the garage through an open service door which was on the side of the garage, facing a sidewalk that led from the rear gate to a house near the front of the lot, and saw an automobile which matched the description given by the victims. The detective then called to another officer and they entered the garage, opened the car door and discovered various items of evidence. The court, in rejecting the contention of one of the defendants that the detective’s entering the yard and looking through the garage door constituted an illegal search, stated that although entry upon the premises was not made in a “hot pursuit” situation, the officers were certainly engaged in “warm” pursuit. The victims had been released by their abductors only a few hours earlier, and if the garage in question was not the location where some of the rapes occurred, the police needed to know this as soon as possible in order that they could continue their investigation without unnecessary delay. Relying on the principle that a moderate exigency justifies only a petty peaceful intrusion, the court held that the detective’s looking into the garage through the open door was justified under the circumstances of the case.

In the present case, as in Morrow, the officers’ initial entry on the premises occupied by defendant was of a trivial character. The record contains no indication that the yard surrounding the duplex was fenced, the hit-and-run vehicle was not in a garage or otherwise enclosed, the police did not touch the car and there was no intrusion on a dwelling during the search. The police arrived at the premises within an hour of the victim’s death and thus were certainly in “warm” pursuit of the perpetrator of the crime if not in hot pursuit. (Cf. People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543 (commission of offense within past 90 minutes supported warrantless arrest of suspect in his home).) The need for the police to promptly determine whether the vehicle in question had been involved in the accident so that they would know whether to continue their search for the hit- and-run vehicle was quite compelling under these circumstances. Because of the visibility of a portion of defendant’s vehicle from the street and the proximity of the officers’ entry on the premises to the time of the victim’s death, there was even greater justification for the warrantless search which led to the discovery of the suspect vehicle in the present case than in Morrow.

Furthermore, the evidence indicates that the Monte Carlo was parked parallel to a railroad track. There is no indication that any type of barrier separated the area where the car was parked from the track. The fact that the entire vehicle, including the damaged portion thereof, was probably visible from neighboring lands completely destroys any expectation of privacy that defendant had in the. area where the automobile was parked. We therefore hold that defendant most likely had no legitimate expectation of privacy in the area where the hit-and-run vehicle was discovered, and that if such an expectation indeed existed, the trivial violation thereof which led to discovery of the hit-and-run vehicle was fully justified by exigent circumstances.

We now turn to the question of whether the warrantless seizure of defendant’s automobile was a violation of his fourth amendment rights. Generally, objects which are not inadvertently discovered by police officers may never be seized without a warrant unless the objects are contraband, are dangerous in themselves, or are found within the immediate proximity of a lawfully arrested individual. (Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.) Coolidge provides no solace to the defendant, however, for we are of the opinion that the discovery of the hit-and-run vehicle was inadvertent. This aspect of the instant case is virtually indistinguishable from the situation with which we were recently confronted in People v. Smith (1981), 101 Ill. App. 3d 772, 428 N.E.2d 641. In Smith, the police received an anonymous tip that an item of stolen property was at a particular location. The police proceeded to that site, found defendant in possession of the stolen property, seized the property, and arrested defendant. We held that the discovery of the stolen property was inadvertent, because the police were conducting an investigation based solely on an informant’s tip and were not certain what they would find. Here, as in Smith, the officers were acting entirely on the basis of an anonymous phone call; they did not know for certain that they would find the hit-and-run vehicle at the premises where defendant resided. Therefore the discovery of the automobile was inadvertent, and its seizure was not violative of defendant’s fourth amendment rights as delineated in Coolidge.

Moreover, the introduction of evidence obtained through an improper seizure of defendant’s automobile would not have required reversal of his conviction under the circumstances of this case, for the identity of defendant was not at issue. His trial testimony clearly established that he hit someone with his car at the time and place of the victim’s death. Therefore, the evidence introduced at trial that was gained as a result of the seizure of defendant’s vehicle, which consisted mainly of information that “fits” were obtained between the damaged portions of the vehicle and pieces of the vehicle found at the scene of the accident and knowledge that blood and hair found on the vehicle may have been that of the victim, was purely cumulative, and was beyond a reasonable doubt immaterial to defendant’s conviction. See Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

Finally, in view of the observations made by the police officers while legitimately present on defendant’s premises, their knowledge that defendant frequently drove the damaged vehicle, and defendant’s admission to Sergeant Hill that he had been involved in an accident, there was clearly probable cause for issuance of a warrant for the performance of skid tests with defendant’s vehicle. Thus defendant’s assertion that this warrant was issued without probable cause is meritless.

Defendant’s next contention is that he was illegally arrested in his home. In the absence of the valid consent of an occupant or exigent circumstances, law enforcement officials may not make a warrantless entry of a home in order to effect a routine felony arrest. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) Consent for the police to enter a premises must be voluntary under the totality of the circumstances in order to sustain the validity of a warrantless arrest in a defendant’s home. Therefore, absent an exigency, an officer must necessarily seek permission before entering a dwelling to make a warrantless felony arrest if such permission is not offered. The burden is on a defendant to establish the illegality of his arrest when he intends to utilize the alleged illegality as a basis for suppression of evidence. People v. Lane (1982), 106 Ill. App. 3d 793, 436 N.E.2d 704.

In the present case, Sergeant Hill knocked on the door of defendant’s residence before entering. When the defendant saw Hill, he opened the door to admit the officer and stepped back a few paces so that Hill could enter. There is no discrepancy as to this point in the testimony of Sergeant Hill and defendant, both of whom testified at the hearing on defendant’s motion to suppress evidence. Although defendant did not verbalize his invitation for Hill to enter his dwelling, it is apparent that his actions were intended as an offer of permission for Hill to enter. Furthermore, defendant testified that Sergeant Hill was in uniform when he entered and that he knew why Sergeant Hill was there. Thus, defendant was fully aware of Hill’s purpose and authority at the time he entered defendant’s dwelling. (See People v. Wolgemuth (1977), 69 Ill. 2d 154, 370 N.E.2d 1067.) We must therefore conclude that the entry of Sergeant Hill to defendant’s home was pursuant to consent voluntarily granted by defendant. It follows that defendant’s arrest was not illegal and that the trial court did not err in admitting evidence of defendant’s post-arrest statements and the results of the intoxilyzer tests administered to him.

The defendant further asserts that the projection to the jury of a color slide, showing the victim’s body as found by police at the scene of the accident, with the intestines hanging out of the body onto the pavement, was error. Since the cause of decedent’s death and decedent’s identity had earlier been established, and since defendant raised no issue at trial concerning these matters, defendant argues that the projection of this slide served no useful purpose and only inflamed the passions of the jury against him.

This argument is likewise without merit. Generally, upon a plea of not guilty, the State is entitled to fully prove the crime charged, even if the defendant offers to stipulate to certain evidence. Trial judges generally have wide discretion in regard to the admission of photographs of crime victims, and may admit gruesome photographs of the victim taken at the scene of the crime which are probative of any fact in issue. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238; People v. Nicholls (1969), 42 Ill. 2d 91, 245 N.E.2d 771.) Furthermore, photographs are not unnecessarily cumulative simply because there is oral testimony covering the same issue as to which the photographs are introduced as evidence. People v. Henenberg (1973), 55 Ill. 2d 5, 302 N.E.2d 27.

The only case cited by defendant in which a photograph of a homicide victim was held inadmissible at the perpetrator’s trial is People v. Garlick (1977), 46 Ill. App. 3d 216, 360 N.E.2d 1121. In Garlick, the defendant admitted to killing the victim; his sole defense was insanity. Therefore, the court held that photographs showing the extent of the victim’s wounds were inadmissible and served no purpose other than to prejudice the jury against defendant. In the present case, however, the photograph of the victim as discovered at the scene of the crime was probative of the force with which decedent was struck, and thus the speed at which defendant’s automobile was traveling at the time that it hit the victim. It informed the jury of the extent and nature of decedent’s injuries much more accurately than the testimony of the witnesses who viewed the accident scene. Since vehicular speed at the point of impact is obviously an important (although not controlling) factor in ascertaining whether a defendant is guilty of reckless homicide, we hold that the trial court did not exceed the bounds of its discretion in allowing the projection of the slide of which defendant complains.

The defendant’s final contention is that he was not proved guilty" of reckless homicide beyond a reasonable doubt. The evidence discloses that the speed limit on the portion of Ottawa Street where decedent’s body was found was 25 miles per hour, and that a college campus was on at least one side of the street. According to the skid tests conducted with defendant’s vehicle by the Illinois State Police, defendant was traveling at approximately 36 miles per hour at the time that his car collided with Lawrence. The skid tests are subject to a one to two percent error factor, but the error, if any, accrues in favor of an accused. A fresh skid mark 71 feet in length was found at the scene of the accident. The defendant was subjected to two intoxilyzer tests more than one hour after Lawrence’s death, and both tests showed that defendant had a blood alcohol content of .17%.

Trooper Stuart R. Erlenbush of the Illinois State Police began an interview with defendant at approximately 12:05 a.m. on August 11, 1981, at the Logan County Public Safety Complex. The defendant first told Erlenbush that at the time of the accident, he was driving in the vicinity of Lincoln College at a speed of 30 miles per hour, that he was keeping an eye on his speedometer, that he had his lights on, that he was driving on the right hand side of the road, and that he was not drunk. He hit something walking in his path as he drove down the street. He did not stop because he was scared and drove straight home. When he arrived at his residence, he did not at first know what to do, but he later walked back to the place where he had struck something, and in talking to a bystander learned that a man had been hit. The defendant then returned home a second time and was getting ready to call the police when Sergeant Hill knocked on the door. Erlenbush specifically asked the defendant if he had been drinking, and he replied in the negative. Since Erlenbush smelled alcohol on defendant’s breath, he asked defendant if he would take an intoxilyzer test, and defendant agreed to do so.

After the intoxilyzer tests and a blood test were administered to defendant, Erlenbush interviewed him a second time. He again questioned defendant about drinking, and the defendant admitted that he may have had two or three beers prior to the accident. The defendant reiterated that he was driving on the proper side of the street and also stated that there was a sidewalk for pedestrians to walk on and that there was a “guy walking down the middle of the road.” The defendant did not know exactly how it (his hitting of the victim) happened, but it happened very quickly. According to Erlenbush, the defendant was nervous and excited during the interview, but there was no noticeable slurring of speech. Furthermore, the defendant had no difficulty walking, although Erlenbush had only a very limited opportunity to observe his ability to do so. Erlenbush stated that the only indication of intoxication on the part of defendant, other than the results of the intoxilyzer tests, was the odor of alcohol on his breath.

Tracy Beth Naylor testified that defendant and two companions came to her home in Mt. Pulaski on the evening of August 10, 1981. While at her home, the defendant drank two beers, and two shots of Southern Comfort. In her opinion, the defendant was “loaded,” in other words drunk, on that evening. He was “stumbling a little” but did not fall down. The defendant’s companions, Bob Montgomery and Del Wilson, were also drunk, and Naylor had likewise been drinking.

Bob Montgomery stated that he was with defendant from noon until about 10:30 p.m. on the day of Lawrence’s death. According to Montgomery, defendant probably drank three or four beers on that day, although he was apparently uncertain about the exact amount of alcohol which defendant consumed. Montgomery had made an earlier statement to Trooper Erlenbush that defendant was “pretty well drunk” on the evening in question and was driving “not too good” after he, defendant, and Del Wilson entered Lincoln on their way back from Naylor’s home, but he testified at trial that he did not notice any unusual driving on the part of defendant after the three entered Lincoln. The defendant was not driving at an excessive rate of speed, and did not disobey any traffic signals. Furthermore, Montgomery did not notice that defendant had any difficulty walking on the evening of August 10,1981, and defendant’s speech on that night was “O.K.”

Lester K. Petersen, defendant’s father, testified for the defense. Petersen is a lineman for CILCO and one of his job duties is the installation and repair of street lights. He is familiar with the streets of Lincoln, and between the time of Lawrence’s death and the time of defendant’s trial, he made several visits to the area where Lawrence was killed. He made measurements, noted the location of buildings and made a drawing of the area. According to Petersen, there were no pedestrian crosswalks in the vicinity. Petersen also made detailed estimates of the location and extent of shadows caused by the placement of street lights in relation to trees in the area of the accident. The effect of the location of the street lights is that a motorist approaching the scene of Lawrence’s death, from the direction in which defendant was traveling on the night of the accident, passes from shadow into light into shadow.

The defendant, testifying on his own behalf, stated that on the afternoon of August 10, 1981, he, Bob Montgomery, and Del Wilson played frisbee in Memorial Park in Lincoln, and had some beers there. The defendant drank about four or five beers in the park before proceeding, at about sunset, to Tracy Naylor’s home in Mt. Pulaski in the company of his two friends. While at Naylor’s home, defendant had several more beers, and one drink of Southern Comfort. After about an hour and a half at the Naylor residence, they returned to Lincoln via country roads. By the time defendant and his friends left the Naylor home, defendant had consumed seven to nine beers, but he was not drunk, was not sick, and felt fine when he left Mt. Pulaski. On the way back to Lincoln, he had no difficulty finding his way, seeing or keeping his car on the road. He first took Wilson home, and then dropped off Montgomery before proceeding to his home. He had no difficulty locating the homes of his friends or in driving his car, which was in good mechanical condition. After dropping off Montgomery, he turned onto Ottawa Street. He was driving down the righthand side of the street at about 30 miles per hour and was not swerving his car. There were no cars parked on the right side of the street but there were some cars on the left side. Suddenly, a “motion” came across his side of the road, he felt a thump or thud in front of the car, fragments of windshield glass came into the passenger compartment, and the windshield on the passenger side of the car was shattered. The last thing defendant remembered doing at the scene of the accident was hitting his brakes. The next thing he remembered was “picking [his] head off the steering wheel at [his] residence.” He did not remember what happened in the intervening period. He got out of his car and walked around it, wondering how he had gotten there. When he saw the front of his car, it occurred to him that he may have hit a person. He ran back to the scene of the accident, where he saw an ambulance and squad cars, and then ran back to his home, told his mother that he had had an accident, that he thought that he may have hit someone, and had started to call the police when Sergeant Hill knocked on the door.

On cross-examination, the defendant admitted that he knew a college campus was on both sides of the street where the accident occurred and that there was heavy pedestrian traffic in the area. He had his bright lights on at the time of the accident and did not know whether he came to a complete stop after the impact. When he arrived at his residence, he noticed that he had a sore knee, a slight headache, and glass in his hair. He did not know why he did not stop at the scene of the accident and immediately report his involvement to the police.

Section 9 — 3(a) of the Criminal Code of 1961 provides in pertinent part:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits reckless homicide.” (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).)

In order to secure a reckless homicide conviction, the State must prove that a defendant recklessly drove a motor vehicle in a manner likely to cause death or great bodily harm. (People v. LaCombe (1982), 104 Ill. App. 3d 66, 432 N.E.2d 672.) Recklessness is defined as conscious disregard of a substantial risk that one’s acts are likely to cause death or great bodily harm to an individual, where the disregard constitutes a gross deviation from the standard of care which a reasonable person would have utilized in the situation with which the defendant was confronted. (People v. Walljasper (1981), 97 Ill. App. 3d 81, 422 N.E.2d 251.) Criminal liability does not attach to every negligent act resulting in the death of another, but only to acts of such a reckless or wanton character as to be indicative of an utter disregard for the safety of others under circumstances likely to cause injury. LaCombe.

As support for the assertion that he was not proved guilty of reckless homicide beyond a reasonable doubt, defendant relies principally on LaCombe, Walljasper, and People v. Friesen (1978), 58 Ill. App. 3d 180, 374 N.E.2d 15, all cases in which the defendant’s reckless homicide conviction was reversed. In none of these cases, however, was there any conclusive evidence that the defendant was heavily intoxicated or was speeding at the time that his automobile struck and killed the victim. In other words, there was no significant indication that the conduct of the defendants in these cases constituted a gross deviation from the standard of care which a reasonable person would have utilized under the circumstances. For this reason, the behavior of the defendants in the above cases is readily distinguishable from the course of conduct with which we are here concerned.

In the present case, there is unrefuted evidence that at the time of the victim’s death, the alcohol content of defendant’s blood (.17%) was far above the level of presumptive intoxication (.10%) (Ill. Rev. Stat. 1981, ch. 951/2, par 11 — 501(c)(3)), and that defendant was exceeding the speed limit by 11 mph in the vicinity of a college campus where there was at least a higher than average amount of pedestrian traffic. The evidence as to the actual effect of the alcohol on defendant is in conflict. On the one hand, there is the defendant’s testimony that his driving ability was unimpaired on the evening in question and the statements of Bob Montgomery that defendant was driving relatively well after he, Montgomery, and Wilson entered the city of Lincoln on their way back from Mt. Pulaski. On the other hand, there is the testimony of Tracy Naylor that the defendant was “loaded” and that he was “stumbling a little” when he left her home to return to Lincoln. Furthermore, the veracity of Montgomery’s testimony on this point is undercut by his earlier statements to Trooper Erlenbush that the defendant was driving “not too good” after he entered Lincoln and that he was “pretty well drunk” on the evening in question. In our opinion, this conflicting evidence created a jury question as to the effect of the liquor on defendant. The jury was justified in believing that the alcohol had quite a significant impact on defendant and substantially impaired his driving ability, and in disregarding conflicting testimony. See People v. Jones (1971), 2 Ill. App. 3d 575, 277 N.E.2d 144; People v. Coolidge (1970), 124 Ill. App. 2d 479, 259 N.E.2d 851.

It is reasonable to assume that the dulling effect of the alcohol on defendant’s reflexes, along with the excessive speed at which he was driving, was the cause of Lawrence’s death. The few seconds’ delay in defendant’s ability to bring his car to a stop, occasioned by his dulled reflexes stemming from his intoxication and the excessive speed at which his automobile was traveling, may well have meant the difference between life and death for Ralph Lawrence. The defendant’s action of driving his car at an excessive rate of speed in an area heavily traversed by pedestrians, while intoxicated to the extent that his driving ability was seriously impaired, was beyond a reasonable doubt likely to cause death or great bodily harm to pedestrians in the area, and in so doing defendant demonstrated an utter disregard for the safety of such persons. We therefore affirm defendant’s reckless homicide conviction.

Affirmed.

GREEN, RJ., and MILLS, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v JOHN LEE DORRIS, Defendant-Appellant.
    Fourth District
    No. 17698
    Opinion filed November 30, 1982.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

After bench trial in the circuit court of Champaign County, defendant was convicted of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1), and sentenced to a five-year term of imprisonment. Defendant appeals the denial of his motion to suppress certain of the State’s evidence and his sentence.

We affirm.

The suppression hearing on the evidence in question was held in conjunction with the trial, but only those facts dealing with the propriety of the search will be discussed in detail. On August 7, 1981, at approximately 2:30 a.m., Edna Carson awoke and found an intruder in her house at 1603 West Healey in Champaign, Illinois. The man fled from the house. She described the burglar as “*** a colored man *** wearing either a white or very light blue T-shirt and blue jeans.” Carson examined her premises and could not locate her handbag and several other items. She told James Ferdinandsen, the investigating police officer, that the handbag, as well as a teacher’s retirement check, two social security checks, and approximately $100 in United States currency were missing. She was upset at that time and could not tell if anything else was missing.

Officer Ferdinandsen was told by Philip Manthei that he observed a car parked in front of his residence at 1610 West Healey at approximately 2:30 a.m. on August 7, 1981. He saw a black male come from the direction of Carson’s house and get in the car. The man was carrying an arm load of “stuff” and a satchel with a long strap. He drove away with the headlights off. Manthei described the car as a two-door, black and white, 1969 or 70 Dodge Dart Swinger “in pretty good condition.” It had Mississippi license plates and a CB antenna in the middle of the trunk lid.

Officer Ferdinandsen broadcasted the following description of the car over the police radio: “A black over white Dodge, CB antenna on the back and clean looking.” Officers Tracy Jobe and Richard Eaton stopped and arrested the defendant in Champaign at 5 a.m. on August 7, 1981. Defendant was driving a black and white Dodge with Florida license plates. The interior of the car was loaded with clothing and other articles and contained two dogs. It had a CB antenna on the rear trunk. The car was taken into custody, the doors were locked and it was towed to police headquarters.

Officer Gary Wright testified that after his arrest, defendant consented to a search of his automobile and willingly signed a consent to search form. Defendant was told that if he did not give his consent, the police would obtain a warrant anyway, and that it would save time if he would consent. An hour later Officer Eaton arrived with a search warrant. Eaton and Wright then proceeded to search the car.

The warrant itself is not in the record, but the parties agreed at trial that the following items to be seized, from the complaint for the search warrant, are identical with what was contained in the warrant:

“[A] Teacher Retirement Check issued to Edna Carson, 2 Social Security Checks issued to Edna Carson; One Hundred Dollars in United States Currency; a large Women’s handbag containing items of personal property belonging to Edna Carson.”

Officer Eaton testified that in the trunk of the car he found a plastic bag of coins in which there was a small, blue, leather coin purse. The purse contained 15 (wheat) pennies and a bank deposit slip. The deposit slip was dated September 1979, had “Champaign National Bank” printed on it, and had an account number on it, but no name. Eaton then called Champaign National Bank and determined that the account number was for the account of Edna Carson. The purse and its contents were then seized.

During subsequent investigation and when brought to her attention, Carson indicated that she had a small, leather coin purse which was missing from her home. The coin purse and its contents were the only items offered at the trial as fruits of the burglary found in the defendant’s possession.

Defendant testified that Officer Wright told him that he would get a faster search if he signed the form consenting to the search of his car. He signed the form, but then told Wright that he did not wish to consent to the search.

The court made the following ruling on defendant’s motion to suppress the purse and the bank deposit slip:

“The Court finds there was sufficient probable cause for the arrest and search of the defendant and the automobile in which he was riding pursuant to the automobile exception and that the search warrant wasn’t even necessary. But having obtained the search warrant, in the event the Court is incorrect in its first assessment, it’s clear that in my judgment, the search was within the scope of the warrant and was not a general search and the items which were seized which are now the subject of the motion, People’s Exhibits 1 and 2, the contents of 1, the pennies, were properly seized pursuant to that search warrant. And for the reasons stated, the motion to suppress is denied as [to] People’s Exhibit 1 and 2, the pennies.”

The trial court also found that the defendant did not consent to the search.

The defendant maintains on appeal that the search and seizure of the purse and bank deposit slip was beyond the scope of the warrant and cannot be justified by the “plain view doctrine.” The State contends that the search and seizure was authorized by the warrant, falls within the ambit of the “automobile” exception to the warrant requirement, and in any event, defendant consented to the search by signing the consent to search form. Since we find that the search and seizure was authorized by the warrant and the items were properly seized while in “plain view” during the execution of the warrant, we decline to consider the other grounds under which the search and seizure may have been permissible.

Defendant correctly points out that Carson did not report to the police that a coin purse or a bank deposit slip was missing, and neither item was listed in the search warrant. Defendant therefore concludes that the police had no reason to either seize the items or to make any further inquiry regarding them. Furthermore, the coins in the purse could not justify its seizure because “One Hundred Dollars in United States Currency” lacks the specificity necessary for a search warrant.

Search warrants must particularly describe the things to be seized and the places to be searched. (Dalia v. United States (1979), 441 U.S. 238, 60 L. Ed. 2d 177, 99 S. Ct. 1682; People v. Sovetsky (1931), 343 Ill. 583, 175 N.E. 844.) The particularity requirement is a safeguard against: (1) the issuance of general search warrants (Marrón v. United States (1927), 275 U.S. 192, 72 L. Ed. 231, 48 S. Ct. 74; People v. Elias (1925), 316 Ill. 376, 147 N.E. 472); the seizure of objects upon the mistaken assumption that a magistrate has given such an authorization (Marrón; People v. Prall (1924), 314 Ill. 518, 523, 145 N.E. 610, 612); and (3) “the issue of warrants on loose, vague or doubtful bases of facts” (Go-Bart Importing Co. v. United States (1931), 282 U.S. 344, 357, 75 L. Ed. 374, 382, 51 S. Ct. 153, 158).

Whether a warrant is sufficiently detailed depends upon the facts of each case. (See People v. Williams (1968), 40 Ill. 2d 522, 531, 240 N.E.2d 645, 650; People v. Curry (1973), 56 Ill. 2d 162, 172, 306 N.E.2d 292, 297.) Within the purposes of the particularity requirement, among the factors to be considered are: (1) the nature of the items to be seized (Curry); and (2) the degree to which the police have provided descriptive facts which reasonable investigation of the crime would reveal. See People ex rel. Carey v. Covelli (1975), 61 Ill. 2d 394, 336 N.E.2d 759; People v. Holmes (1974), 20 Ill. App. 3d 167, 312 N.E.2d 748.

Upon investigating the burglary in the early morning hours immediately after its occurrence, the police were told by the victim that she was missing her handbag and its contents; three checks, which she described particularly; and approximately “One Hundred Dollars in United States Currency.” Currency is a generic term for medium of exchange and includes paper money and coins. (Webster’s Third New International Dictionary 557 (1971).) Currency is by its nature fungible and usually a detailed description will not be possible.

Defendant calls to our attention the case of People v. Holmes where “an undetermined amount of United States Currency” was held to be insufficiently particular for a warrant authorizing a search of an impounded car. The court suggested a general description of the denominations and an approximate amount of the currency could have been ascertained from the grocery store which was the victim of the robbery in question.

Here, the victim did give the approximate amount of the missing currency. The record is silent as to whether the police made inquiry regarding the denominations of the currency. However, “a fairly general description which includes a reference to the circumstances under which goods were stolen, when that added fact discloses something about the condition or appearance of the goods, will suffice.” (2 W. LaFave, Search and Seizure sec. 4.6, at 102 (1978).) We do not have the actual warrant before us, but the complaint for the warrant contained all of the facts discovered in the initial police investigation and the arrest of the defendant. The complainant, Gary Eaton, was one of the officers who conducted the search, so he was aware of the circumstances in which the money was stolen. The list of items to be seized included the handbag and its contents. This information does give some general indication regarding the probable denominations of the currency and the type of container it might be in.

While even a general statement that missing currency is of mixed denominations or is comprised of paper money and coins is desirable, and might be helpful in determining whether or not currency being examined is likely to have been stolen, we cannot say that in these circumstances the warrant here was insufficiently detailed. “To hold otherwise would be to put a premium on hypertechnical detail as opposed to a realistic, common-sense approach to the constitutional requirements relative to search warrants.” People v. Williams (1968), 40 Ill. 2d 522, 531, 240 N.E.2d 645, 650.

Therefore, we conclude that there were several grounds on which the police could properly search and seize the purse. It was found in a plastic bag which contained currency amounting to $88.90, the approximate amount the victim was missing. Since it had within it 15 pennies, the police knew even before opening it that it contained currency. Finally, a purse is a type of container in which one would expect to find currency. The police were authorized to search the car for currency and they properly inspected the coin purse in conjunction with that search. Since the purse contained currency, was found within the plastic bag which contained the approximate amount of missing currency, and was the type of personal item which one would expect to find in a woman’s handbag, it and its contents could have been immediately seized upon its discovery. However, Eaton testified that it was not seized until identification of the bank deposit slip found within it.

Defendant challenges the immediate inquiry made by the police to the bank regarding the account number on the deposit slip. Defendant concedes that the police were lawfully searching the car and could properly seize evidence in “plain view.” (Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022; People v. Hamilton (1979), 74 Ill. 2d 457, 386 N.E.2d 53.) To be seizable, evidence in “plain view” must be: (1) of incriminating character, (2) immediately apparent to the police that it is incriminating, and (3) discovered by the police inadvertently. (Coolidge.) Defendant contends that the incriminating nature of the purse and the bank deposit slip was not readily apparent to the police and therefore not subject to seizure. Furthermore, the police were not justified in making further inquiry about the “innocent seeming” objects in order to discover their incriminating character.

We have already discussed why the police could have been justified in immediately seizing the purse and its contents under the warrant. Some of the same reasons would support further inquiry into the nature of the purse and its contents without relying on the “currency” component of the warrant. The deposit slip was found in a coin purse, and both items are of a type one might expect to find in a women’s handbag. The warrant included among the items to be seized “a large women’s handbag containing items of personal property belonging to Edna Carson.” The automobile in which the purse and deposit slip were found matched the description of the car observed at the scene of the burglary and was impounded shortly after the burglary.

It has been suggested that the “immediately apparent” requirement does not prohibit a minimal additional intrusion which results from inspection or examination of an object in plain view, if the officer is aware of some facts and circumstances which, although not constituting probable cause, would justify a reasonable suspicion that the object is, or contains, fruits of a crime. (2 W. LaFave, Search and Seizure sec. 6.7(b) (1978).) Several other jurisdictions have upheld the checking of external identification numbers on an item unnamed by a warrant in circumstances which justified the police having a reasonable suspicion that the item was stolen. United States v. Hamilton (D. Del. 1971), 328 F. Supp. 1219; State v. Legas (1978), 20 Wash. App. 535, 581 P.2d 172; Dugan v. State (1974), 130 Ga. App. 527, 203 S.E.2d 722; State v. Cernohous (1973), 295 Minn. 491, 205 N.W.2d 680; State v. Sagner (1973), 12 Or. App. 459, 506 P.2d 510; State v. Turner (1972), 210 Kan. 836, 504 P.2d 168; but see United States v. Gray (6th Cir. 1973), 484 F.2d 352; Commonwealth v. Hawkins (1972), 361 Mass. 384, 280 N.E.2d 665.

We have found no similar Illinois cases involving identification numbers. However, in People v. Christeson (1970), 122 Ill. App. 2d 192, 258 N.E.2d 142, the Madison County police, armed with a search warrant for a stolen television, entered defendant’s residence. The television, located in the dining room, was identified and seized. Officers also observed numerous power tools on the floor of a bedroom which were visible from where the officers were standing. On the previous day, a lumber company in Macoupin County had suffered a burglary in which power tools and office machines had been taken. The officers, while in the residence, confirmed by telephone conversation with the Macoupin County authorities that the property was similar to that which had been stolen. This court upheld the seizure of the tools. We believe that Christeson and similar cases are the logical application of the principle found in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, that a minimal intrusion into a person’s privacy may be justified when sufficient grounds exist for a reasonable suspicion, but not for probable cause. This balancing concept has already been applied in Illinois in “warm pursuit” cases holding that since great exigencies often allow for warrantless entries, a “moderate exigency” may justify a more limited intrusion. People v. Petersen (1982), 110 Ill. App. 3d 647; People v. Morrow (1982), 104 Ill. App. 3d 995, 1004, 433 N.E.2d 985, 992.

Therefore, we hold that when the police have a reasonable suspicion that an item in plain view is stolen property, the minimal additional intrusion of checking external identification numbers is proper. The bank deposit slip and the purse in which it was found was lawfully searched and seized.

Defendant also contends that the trial court abused its discretion in sentencing him to five years’ imprisonment. At the sentencing hearing the State recommended a three-year term of imprisonment.

Burglary is a Class 2 felony for which defendant could have been sentenced to imprisonment for not less than three years and not more than seven years as provided in section 5 — 8—1(a)(5) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, pars. 19 — 1(b), 1005— 8 — 1(a)(5)). Defendant’s sentence was within the statutory limits and will not be reduced absent a showing of abuse of discretion on the part of the trial court. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

A prosecutor’s sentencing recommendation is not binding on the court. People v. Pahlman (1977), 51 Ill. App. 3d 879, 366 N.E.2d 1090.

Defendant had a history of prior delinquency and criminal activity which is a factor which weighs in favor of the imposition of a severe sentence as provided in section 5 — 5—3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2). Defendant was adjudicated a delinquent in July 1974, after a finding that he committed three counts of the offense of burglary. Defendant was readjudicated a delinquent in April of 1975 after having committed an additional burglary. In 1976 defendant was convicted of felony theft and in 1980 of attempted burglary. While on parole defendant received six discipline referrals and violated his parole by illegally possessing cannabis.

While the court also found some mitigating factors, we cannot say that the sentence imposed was an abuse of discretion.

Affirmed.

GREEN, RJ., and MILLS, J., concur.


author: JUSTICE LONDRIGAN

text:
    DON MEEKER, Plaintiff-Counterdefendant-Appellant and Cross-Appellee, v. HAMILTON GRAIN ELEVATOR COMPANY, Defendant-Counterplaintiff-Appellee and Cross-Appellant.
    Fourth District
    No. 4—82—0083
    Opinion filed November 22, 1982.

      Harlan Heller, Ltd., of Mattoon (Mark E. Ferguson and Harlan Heller, of counsel), for appellant.
    Roger B. Gomien, of Morris (Paul E. Root, of counsel), for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The plaintiff sued under a contract to recover the purchase price of two grain bins that he had supplied and built for the defendant. The defendant moved to dismiss the complaint as barred by the statute of limitations; the trial court denied the motion. The defendant then counterclaimed, attacking the quality of the plaintiff’s work and materials. The trial court found that the first bin was not built in a workmanlike manner and as a result blew over and that the second bin, though built in a workmanlike manner, was unmerchantable and as a result caved in. After assigning various losses and payments, the court awarded the defendant a net amount of $685 in damages. Both parties appealed, and the defendant renewed its assertion that the action is untimely. We agree with the defendant and therefore reverse the judgment.

The parties signed their contract August 25, 1971. The plaintiff confessed judgment against the defendant April 9, 1979, which the contract permitted, for the defendant’s failure to pay for the bins. The confession was later vacated on the defendant’s motion, and the various pleadings were then filed.

Section 2 — 725(1) of the Uniform Commercial Code (UCC) (Ill Rev. Stat. 1981, ch. 26, par. 2 — 275(1)) provides a four-year period for bringing actions for breach of contract. Section 13 — 206 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 206) provides a 10-year period for contract actions not covered by the UCC. In denying the defendant’s motion to dismiss, the trial court held that construction was the subject of the contract and therefore the UCC did not apply.

The plaintiff first argues that the contract here is primarily for a service, the erection of two grain bins. Bonebrake v. Cox (8th Cir. 1974), 499 F.2d 951, 960, recognizing that many contracts for the sale of goods also require the performance of services, formulated this frequently cited test for deciding whether contracts that mix goods and services are within the scope of article 2 of the UCC:

“The test for inclusion or exclusion is not whether [the contracts] are mixed, but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved {e.g., contract with artist for painting) or is a transaction of sale, with labor incidentally involved {e.g., installation of a water heater in a bathroom).”

In Bonebrake the seller’s estate sued the buyer to recover on a contract for the sale and installation of bowling equipment (lanes and gutters, ball returns, racks, shoes, balls); the seller had died before the contract was completed. The circuit court reversed the district court’s decision, entered on a special master’s report, that the contract was for services and thus outside article 2. The court noted that the parties’ contract used language that implied a sale of goods rather than a performance of services and said that the services contemplated — installation of the lanes, gutters, and racks — did not remove the contract from article 2. Thus, a contract may be covered by article 2 even though it requires the installation or assembly of large items; when the sale of goods is only incidental to the rendition of services, the contract falls outside the scope of article 2. See also Pittsburgh-Des Moines Steel Go. v. Brookhaven Manor Water Co. (7th Cir. 1976), 532 F.2d 572 (one-million gallon water tank is goods); Executive Centers of America, Inc. v. Bannon (1978), 62 Ill. App. 3d 738, 379 N.E.2d 364 (contract for employment as golf professional at country club included sale to golfer of 20 carts for his work; sale of goods was only incidental to employment, so contract was outside article 2); Pineau v. White (1957), 101 N.H. 119, 135 A.2d 716 (contract for the sale and installation of a furnace was within article 2); Schenectady Steel Co. v. Bruno Trimpoli General Construction Co. (1974), 43 A.D.2d 234, 350 N.Y.S.2d 920, aff’d (1974), 34 N.Y.2d 939, 359 N.Y.S.2d 560, 316 N.E.2d 875 (appellate division held that agreement for furnishing and erecting steel for a bridge is for services rather than goods; in a memorandum opinion the New York Court of Appeals affirmed that result but said that the applicability of article 2 was immaterial in that case).

We conclude that the contract here was primarily for the sale of goods and therefore falls within the scope of article 2 of the UCC. The cases cited above and the language of the contract both support this result. The contract says that the defendant “agrees to purchase from the Seller, the following equipment”; a “description of equipment and labor sold” then follows and lists two “Meeker’s Deluxe Storage Bins” and incidental equipment such as fans without mentioning labor or installation. Throughout the contract the parties are called “seller” and “purchaser.” The plaintiff charged a sales tax on the total value of the contract. These terms signify that a sale of goods was predominant and services incidental.

The plaintiff argues, though, that the bins are not within article 2 because they were not movable at their time of identification to the contract, as required by the definition of “goods”:

“(1) ‘Goods’ means all things, including specially manufactured goods, which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action.” Ill. Rev. Stat. 1981, ch. 26, par. 2 — 105(1).

Bonebrake v. Cox (8th Cir. 1974), 499 F.2d 951, also discussed identification and movability; the seller’s estate argued that the bowling equipment was outside article 2 because the items were to be attached and made immovable. The court rejected this for two reasons: (1) under section 2 — 105, defining “goods,” the items must be movable only at the time of identification, which in that case occurred before the equipment was installed, and (2) alternatively, the bowling lanes came in prefabricated sections, which were to be set in the floor and screwed together, meaning that they were movable until that time. In discussing this second reason the court observed that the contract was for used lanes, so their earlier use had not rendered them immovable.

The plaintiff’s argument that the bins were not movable when identified assumes that they did not become identifiable bins until they were erected and bolted to their concrete pads; a pile of steel pieces that have been cut and shaped to specified dimensions and angles therefore does not constitute a grain bin. The steel is merely fitted together and connected, however, and thus resembles sections of bowling lanes, which Bonebrake said were identifiable even though not yet assembled. As in Bonebrake, assembling and installing the parts was the service part of the contract here.

The next question is when the cause of action accrued. The contract required an initial payment of $14,990, which the defendant made, and later payments of that same amount every October 1 for four years beginning in 1972. The plaintiff argues that the cause of action did not accrue until October 1, 1975, the scheduled date of the last payment. In that event, the action is timely, for the plaintiff confessed judgment April 9, 1979, within the four-year period set by article 2. Section 2 — 725(2) of the UCC (Ill. Rev. Stat. 1981, ch. 26, par. 2-725(2)) says:

“(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.”

Parties cannot extend the four-year limitation period. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 725(1).) To show that the action did not accrue until the due date for the last payment, the plaintiff quotes this provision from the contract;

“In the event the Total Price above set forth is not paid within ten days of said due date the Purchaser further agrees to pay Seller interest on the unpaid portion of said Total Price at the rate of 8% per annum from due date until said Total Price is paid in full.”

The plaintiff argues that this provision would have prevented him from accelerating the payments or repossessing the bins if the defendant missed a payment. The confession of judgment clause in the contract says, however:

“In Consideration Whereof, I, the Purchaser, do hereby authorize irrevocably, any attorney *** to enter my appearance herein, at any time after date hereof, to waive all process and confess judgment or judgments, *** for such amount as may appear to be unpaid thereon and costs, with reasonable attorney’s fees, and consent to immediate issue of execution on the judgment so confesses ***.”

Finally, the agreement also says:

“It is agreed until the full Total Price set forth hereinabove is received by the Seller, that the title to the aforesaid property shall remain in the Seller, and Seller shall have a security interest therein, and in the event that the Total Price is not paid in full on or before the due date herein set forth, the Seller shall have the right to enter the premises of the Purchaser and dismantle, remove and repossess the aforesaid equipment.”

Although the provisions quoted above refer to one due date, the agreement says, “Balance due $14,990.00, Date 10-1-72, 73, 74 and 1975.” There were four due dates and not one.

The plaintiff’s argument ignores the destruction of the two bins and the defendant’s following acts. The first bin was destroyed in April 1972, and the second bin was destroyed about a year later. The trial court found that the plaintiff salvaged what was left of the first bin, and that the defendant rescinded its acceptance of the second bin. The defendant did not make a payment October 1, 1973. By that time, then, the plaintiff knew that both bins had been destroyed and that the defendant would not pay for either. From all this it appears that the parties’ breaches occurred by the end of 1973, and therefore both the complaint and the counterclaims are barred by the four-year limitation period. We therefore reverse the judgment.

Reversed.

WEBBER and TRAPP, JJ., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL G. MEYER, Defendant-Appellant.
    Fourth District
    No. 4—82—0130
    Opinion filed December 2, 1982.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield (Mark E. Allen, of Culbertson, Culbertson & Allen, of counsel), for appellant.
    Lee J. Plummer, State’s Attorney, of Jerseyville (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

In short, we affirm the conviction.

But we must also reverse the sentence and remand for resentencing.

Meyer was charged with theft with a prior conviction. As he raises a question of the sufficiency of evidence, a rather exhaustive review of the testimony is mandatory.

FACTS

In August of 1980, Meyer was employed at the Shop and Save grocery store in Jerseyville, Illinois. He was eventually promoted to assistant manager, the duties of which included opening and closing the store and generally making sure that all of the departments were running in the proper order. He had total access to the store — to the front door, the soda machines, and the safe.

Meyer had only two superiors in the store — Dale Bushor, the store manager, and Carolyn Delp, the front end manager. Delp normally was in charge of the soda machines in the store. Neither she nor Bushor consented to the removal of any money from the soda machines by the defendant. However, neither Bushor nor Delp was working in the store on the evening of June 29, 1981. Under such circumstances the assistant manager was in total charge of the operations of the store.

Bushor testified that around midnight on June 29, he and Officer Ralph Pickett were in Jersey County Motors across the street from the Shop and Save store attempting to observe the person or persons who had been taking money from the soda machines. From his position, Bushor testified he could see the front of the store and observe the heads of persons moving about inside. He could also clearly see the foyer of the store where the soda machines were located. Meyer, as well as several other persons, were working on the night in question. At around 11:30 p.m., everyone but Meyer left.

At that time, Bushor stated that he saw Meyer go to the cigarette rack, to the front office, and to the soda machines. Meyer opened the doors to both machines, removed two cans of soda and the cash boxes, and returned to the office. He then went back to the machines, replaced the cash boxes, locked the machines, walked to the office, and proceeded out the main door of the store carrying a brown grocery bag.

Bushor testified that he and Pickett stopped Meyer on the sidewalk leading to the Shop and Save parking lot. Bushor asked to see the bag Meyer was carrying and Meyer consented — saying it was groceries or merchandise. The bag contained a loaf of bread, two cans of soda, a carton of cigarettes, and a brown bag full of change (nickels, dimes, and quarters), but no receipt. When Bushor asked Meyer about the money, he replied he was taking it home for safekeeping.

Bushor, Pickett, and Meyer then reentered the store through the door Meyer had exited. Once inside, a phone call was placed to the vice-president of the Shop and Save. Upon the order of the vice-president, defendant’s employment was terminated and his keys were confiscated. About half an hour later, defendant left the store through the main door. (At no time had he mentioned a note taped to the door.)

Bushor testified that he counted the money in the bag seized from the defendant and found it to contain $108. Less than $40 was found in the soda machines.

Bushor further testified that he returned to the store at approximately 6 o’clock the next morning. He unlocked and entered the main door (the same one used the night before) and proceeded to the office — where he put the money taken from Meyer into another bag and placed that bag beneath the counter. Bushor then went to the back room of the store to have coffee. About the time he got his coffee, he received a phone call from the defendant, who asked if Bushor had seen the note. Bushor replied that he had not, but went to look and found a note where Meyer said it would be — on a metal bar at the bottom of the inside of the “In” door next to the “Out” door Bushor had used to gain entry to the store. The note read, “June 30. Dale, I took change out of soda machine. Will explain in the morning. Paul.” Bushor testified that he had entered the store two times and had exited once before defendant’s call.

Bushor also testified that when he entered the store on the morning of the 30th, he had to turn off the alarm. On cross-examination, it was established that the alarm is activated by keying in a four-digit number and locking the door. To deactivate the alarm, a person must key in the same four-digit number within a short period of time after entering the store. If the alarm is deactivated after regular business hours, the alarm company maintains a record and will check to see if entry is authorized.

Officer Pickett substantially corroborated the testimony of Bushor — indicating that when initially stopped, defendant said nothing about the money he was carrying and never mentioned a note. With the conclusion of Pickett’s testimony, the State rested. Defendant’s motion for directed verdict was denied.

Meyer then testified in his own behalf and admitted to prior convictions for theft and forgery. He also related his employment history at Shop and Save and indicated that his duties included watching for employee theft. He stated that approximately 12-18 months earlier he had apprehended an employee who was stealing beer and groceries. Defendant testified that he had also apprehended 27 shoplifters while working for Shop and Save.

Meyer’s testimony as to his actions on the night in question was consistent with Bushor’s observations. Meyer did testify that the groceries in his sack (with the exception of the sodas) had been purchased earlier by his wife. He also stated that he put a note on the “In” door as he left the store, and identified the note Bushor found as the one he had put on the door. Meyer did not know why . the noted was dated June 30 when he wrote it on June 29, except that since it was night, he considered it the next day.

Meyer indicated that once he exited the store, Bushor and Pickett stopped him. He stated that when Bushor asked what was in the sack, he replied bread, soda, and cigarettes. Meyer also testified that he told Bushor that he had been informed by Carolyn Delp several weeks previous that money was missing from the soda machines. Defendant claimed that he had told Delp something ought to be done about it — as had been done with the beer incident. Defendant also claimed to have told John McGrath (the Shop and Save vice-president) the same thing.

Defendant admitted that he never mentioned the note that night and said that he called the next morning from a phone booth in Hardin. Defendant stated that he arrived at the store at 6:25 a.m. to pick up his personal belongings. Meyer also admitted that he took two sodas from the machine without paying for them and that he had no plan to catch the person who was stealing money from the machine, that it was just a “thought.”

In rebuttal, the State called Carolyn Delp, who denied any conversation with the defendant regarding the theft from the soda machines — and denied that defendant ever indicated to her a plan to catch the thief. On cross-examination, she admitted that it was possible that she had had such a conversation and could not remember it, but didn’t think that was the case.

Upon this evidence, the jury returned a verdict of guilty. Meyer was found to be eligible for an extended term because of a prior forgery conviction. Noting that defendant had three times previously been convicted of stealing from his employer, the court sentenced Meyer to a term of six years’ imprisonment.

REASONABLE DOUBT

Meyer’s first contention is that the State failed to prove his guilt beyond a reasonable doubt because his control over the money in question was not shown to be unauthorized and because his intent to permanently deprive was not established. The elements of intent and unauthorized control may — and often must be — proved by circumstantial evidence. (People v. Falkner (1978), 61 Ill. App. 3d 84, 377 N.E.2d 824; People v. Bullock (1970), 123 Ill. App. 2d 30, 259 N.E.2d 641.) Where a defendant has been convicted by a jury, a reviewing court should not lightly reverse the determination of guilt, but should carefully review the record to see if it is sufficient to create an abiding conviction of guilt..People v. Hister (1975), 60 Ill. 2d 567, 328 N.E.2d 531.

This record creates such a conviction. The evidence shows that while Meyer was an employee of Shop and Save with substantial responsibilities, he never had permission to remove money from the store’s" soda machines and take it home. And, while Meyer may have been obliged to stop theft from the store whenever possible, his actions were inconsistent with such a purpose. When first stopped, he did not acknowledge possession of the money. He admitted he had no plan to catch the thief, only a thought. He also admitted that he did steal two cans of soda from the store. Although Meyer disputed it, the State also presented evidence that Meyer never even informed anyone of his “thought” until after he had been accused of theft.

This would normally be sufficient to establish beyond a reasonable doubt the elements of unauthorized control and intent to permanently deprive. However, in this case, there is the note found inside the door of the store in which Meyer admits to his superior that he took the money and has an explanation. This note is certainly inconsistent with an intent to permanently deprive — if it was written and placed inside the store before defendant was caught. Several facts show that this was not the case. First, defendant never mentioned the note when he was stopped. Second, though the note was apparently in a visible location and although defendant and Officer Pickett passed it twice and Dale Bushor passed it three times, neither saw the note. Third, the note was dated June 30, the day after defendant was caught. His explanation — that it was night and he considered it the next day — lacks credibility. Finally, there is the fact that defendant did not take all of the money from the machines. If he was really concerned about stopping theft, it is unclear how his actions would have furthered this purpose.

The question still remains as to how the note got inside the store if the defendant did not leave it as he walked out the door with the money. It is apparent that he could not have returned to the store after Bushor left, unlocked the door with a duplicate key and planted the note without there being some evidence of it. But, Meyer could have slipped the note inside the door after Bushor had opened the store at 6 a.m. on the 30th of June. Meyer could have then walked to a phone booth, called, waited until 6:25 a.m., and then walked into the store to collect his personal belongings. This is entirely consistent with Meyer failing to mention the note, with Bushor and Pickett not seeing it, and with the note being dated June 30.

It is true that a defendant need not present evidence to establish his innocence, but if he takes the stand, denies guilt and offers an improbable explanation for his actions, he does not thereby raise a reasonable doubt. (People v. Delp (1980), 85 Ill. App. 3d 463, 406 N.E.2d 903.) The jury could have reasonably disregarded the note and found defendant guilty. See People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631 (holding that evidence was not so improbable as to'raise a reasonable doubt and require reversal of defendant’s conviction).

SENTENCE

Meyer’s second allegation of error is directed at his sentence. He argues that the court erred in imposing an extended term or, in the alternative, that it abused its discretion in sentencing him to a term of six years.

We hold that while an extended term was proper, the six-year term was improperly imposed. People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558, is controlling.

Hobbs held that a court could not use one prior conviction to enhance a misdemeanor to a felony and also to impose an extended term. We interpret Hobbs to mean that once a prior conviction is used to turn a misdemeanor into a felony or impose an extended term, the usefulness for sentencing purposes is exhausted.

The trial judge here considered Meyer’s prior felony theft conviction both to make his present misdemeanor offense a felony and also to impose a sentence of six years. This was improper. Thus, we affirm defendant’s conviction, but reverse the imposition of a six-year sentence and remand to the trial court with directions to resentence Meyer without reference to his prior felony conviction for theft or his prior forgery conviction.

Affirmed in part; reversed in part and remanded with directions.

WEBBER, P.J., and TRAPP, J., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PHILLIP J. KENNING, Defendant-Appellee.
    Fifth District
    No. 81—214
    Opinion filed October 28, 1982.
    Rehearing denied November 23, 1982.

      John R. Clemons, State’s Attorney, of Murphysboro (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Randy E. Blue and Susan A. Diehl, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The defendant, Phillip Kenning, was involved in an automobile accident in Carbondale, Illinois, on November 9, 1980. He was taken to Memorial Hospital in Carbondale for treatment of a laceration on his head and he was interviewed by Carbondale police at the emergency room. In addition, police obtained his signature on a form releasing his medical records to police and on a form authorizing a blood-alcohol test. The defendant was subsequently charged in the circuit court of Jackson County with driving while under the influence of intoxicating liquor and illegal transportation of alcoholic liquor. His pretrial motions to suppress his oral statements and the results of his blood test were granted and the State appeals pursuant to Supreme Court Rule 604(a) (85 Ill. 2d R. 604(a)).

At the suppression hearing, Carbondale Police Officer Charles Collier testified that when he arrived at the hospital, the defendant was resting on a cot in the emergency room. The officer said that he asked the defendant to sign the release of medical records form and the blood-alcohol test authorization. Collier testified that he started to read the release of records form aloud, but the defendant insisted that he could read the form himself. The officer also testified that he read the blood test authorization form to the defendant. According to Collier, he never told the defendant that the results of the blood test could be used against him in court. He did not tell the defendant that he had the right to speak with an attorney, nor did he warn the defendant that he had the right to have a separate blood test administered by a physician of his choice. The officer further failed to mention that there was a legal presumption of intoxication that could be used against him in court.

Collier recalled that the defendant was not under arrest when he signed the forms. He stated that he told the defendant that a blood-alcohol test was a “requirement” and that the police “like” to take such tests whenever there is a serious accident. Additionally, Collier testified that the defendant’s girlfriend, Ms. Annette Teubert, read the consent and release forms to the defendant, told him he should sign the forms and pointed out the lines for the signatures.

Ms. Teubert’s version of the events differed from that given by Officer Collier. She testified that she saw a nurse hand Collier a clipboard with papers on it. However, she stated that he refused to tell her what the papers were, refused to let her read them, refused to let the defendant read them and refused to read them aloud to the defendant. Ms. Teubert testified that the officer told the defendant that the forms were mandatory. She said that he explained to her that the forms were required because a pedestrian injured in the accident might die and because the pedestrian was being taken out of State, to St. Louis, for treatment.

Ms. Teubert recalled that because the defendant was not wearing his eyeglasses she tried to read the consent and release forms to him three times, but was interrupted twice by Officer Collier and once by a nurse. Eventually, she testified, Collier escorted her from the room. Collier denied doing so. She returned to the room because she feared that the officers were “deceitfully” trying to “force” the defendant to sign the papers. Ms. Teubert explained that she had spoken earlier to her father, an attorney, and he advised her that the defendant should be cautious about signing any documents that could be used against him in court. However, the defendant signed the documents despite his girlfriend’s warnings, explaining to her that the papers were required in order to take the injured pedestrian out of State.

Michelle Pitchell-Freimuth, who drove Annette Teubert to the hospital, testified that while she was sitting in the waiting room, she saw Officer Collier escort Ms. Teubert out of the emergency room. Ms. Pitchell-Freimuth stated that she later talked to the defendant in his hospital room, and he maintained that it was necessary for him to sign the forms because the injured pedestrian was being taken out of State. He informed her that his girlfriend should not be upset about his signing the papers.

When the defendant took the witness stand, he explained that the laceration on his head had required eight to 10 stitches and several smaller cuts had also required attention. Because of these wounds, his head had been partially shaved and a local anesthetic had been administered prior to treatment. According to the defendant, he was dizzy, groggy and “not all there” when he spoke with police. He testified that the officer told him that he was required to sign the forms because of the possibility that the injured pedestrian might die and because the pedestrian was being transferred out of State. He testified that his recollection was somewhat unclear, but he believed that the forms he signed were required by the hospital. The defendant stated that he was not informed that he had the right not to sign the forms, that the information could be used against him in court, that he could consult with an attorney or that he was suspected of a crime. The defendant also stated that he was severely nearsighted and could not see past six inches without his eyeglasses.

Carbondale Police Officer Charles Doan, who helped interview the defendant at the emergency room, was unable to corroborate much of Officer Collier’s testimony. At the suppression hearing he stated repeatedly that his memory of events was incomplete. He testified that he could not recall whether the defendant was wearing glasses over his bandages, whether Ms. Teubert ever left the room, whether she read the forms or told the defendant not to sign them, or whether the defendant asked if he could consult with an attorney or have his glasses. Doan also stated that he could not remember if the defendant had been informed that he had to sign the forms because they were routine in serious accidents when an injured person is transferred out of State. In addition, he could not recall whether Collier told the defendant that he was suspected of driving while intoxicated, whether either officer told the defendant that he had the right to refuse the blood test, whether he told the defendant that the results of the test could be used against him in court, whether the defendant was told the tests were for police, not hospital, use, or whether the defendant was told that he could consult a lawyer. Doan could not remember whether either officer gave the defendant the admonitions required before a person may consent to a breath test, or any similar advice. Although Officer Doan did recall that he noted the odor of alcohol on the defendant’s breath at the accident scene, he stated that that fact did not create any suspicions in his mind that the defendant was driving while intoxicated.

The trial court noted that the police officers had each testified that at the time of the auto accident, there was an odor of alcohol on the breath of the defendant. Therefore, the court found that the defendant had already been suspected of driving while under the influence of intoxicating liquor and that because “a custodial situation was indicated,” the oral statements made by the defendant without receiving Miranda warnings should be suppressed. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) The court stated that to hold otherwise would allow the Miranda rule to be circumvented.

In ruling on the blood-alcohol test consent, the court emphasized that credible testimony showed that the police told the defendant that the forms pertained to hospital business and not to a criminal investigation. In addition, the court observed that it was uncontroverted that the defendant had recently received treatment for his head injury and had been given a local anesthetic, and the defendant had testified that he was dizzy and groggy at the time. Because the forms were signed so soon after the accident and the medical treatment, and because testimony showed that the defendant was mislead by police, the trial court held that the State had not shown that the consent for the blood test was voluntary and therefore the results of the test were also ordered suppressed.

The State’s first contention on appeal is that the trial court erred in suppressing oral statements the defendant made at the hospital. The State asserts that the questioning by police at the hospital was noncustodial in nature and Miranda warnings were therefore not required. Custodial interrogations exist when police initiate questioning “after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) The warnings are not required when the defendant was neither under arrest, nor led to believe he was under arrest. Oregon v. Mathiason (1977), 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711.

The trial court held that a custodial situation existed here because the defendant was already suspected of a crime since the officers smelled alcohol on his breath. However, Miranda warnings are not required merely because the person being questioned is suspected by the police of criminal conduct. (Oregon v. Mathiason.) Moreover, since the testimony at the suppression hearing showed that neither the defendant nor police believed he was in custody, there was no custodial interrogation. Instead, there was only general questioning at the hospital following the accident and Miranda warnings were not required. Accordingly, the defendant’s oral statements were erroneously suppressed. People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870; People v. Clark (1977), 55 Ill. App. 3d 496, 371 N.E.2d 33.

The State’s second contention is that the trial court erroneously suppressed the results of the defendant’s blood-alcohol test as being obtained without the defendant’s voluntary consent. Compulsory blood tests do not violate an individual’s constitutional rights merely because he objects to such tests. (Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.) Illinois, however, has adopted a statutory provision which requires the exclusion of blood tests results obtained without the defendant’s consent. (Ill. Rev. Stat. 1981, ch. 95%, par. 11 — 501(c)(3); People v. Todd (1975), 59 Ill. 2d 534, 322 N.E.2d 447.) Under the standard of Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041, section 11 — 501(c)(3) of the Illinois Vehicle Code requires only that the consent be voluntary, not that it be “knowing and intelligent.” (People v. Lentini (1982), 106 Ill. App. 3d 695, 435 N.E.2d 1280; People v. Cook (1981), 94 Ill. App. 3d 73, 418 N.E.2d 457.) The voluntariness of the consent is a question of fact to be determined from all the circumstances, and the subject’s knowledge of a right to refuse is only one factor to be taken into account in establishing whether the consent was voluntary. Schneckloth v. Bustamonte.

Here, the trial court made a finding of fact that the defendant’s consent for testing of his blood was not voluntary. It is well accepted that it is the trial court’s function to determine the credibility of the witnesses and a reviewing court will not overturn the trial court’s findings unless they are contrary to the manifest weight of the evidence. (People v. Huffner (1981), 99 Ill. App. 3d 516, 425 N.E.2d 603.) The defendant in the case at bar testified that the automobile accident had caused a serious laceration on his head and a local anesthetic had been required. He recalled that he was told by police that signing the forms was mandatory. The defendant’s girlfriend testified that when she demanded to read the forms she was physically escorted from the room, and her friend in the waiting area observed her being escorted from the room. When the friend later spoke with the defendant in his room, the defendant explained his belief that signing the documents was mandatory. But most importantly, the other police officer at the scene was unable to provide substantial corroboration for his partner’s testimony that the defendant was not misled about the nature of the forms. Based on this evidence, we cannot conclude that the trial court’s findings were against the manifest weight of the evidence.

Without the defendant’s consent, found absent by the trial court, the results of the blood-alcohol tests are inadmissible against the defendant. (People v. Williams (1981), 103 Ill. App. 3d 876, 431 N.E.2d 1280; People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497; People v. Wheatley (1972), 5 Ill. App. 3d 827, 284 N.E.2d 353.) We therefore affirm the order of the circuit court of Jackson County which suppressed the results of defendant’s blood test, and reverse the order which suppressed the oral statements made by defendant at the emergency room. This cause is remanded for further proceedings.

Affirmed in part, reversed in part, remanded.

EARNS, P.J., and JONES, J., concur.