author: Mr. JUSTICE JIGANTI

text:
    CHARLES F. MOEHLE, Adm’r of the Estate of Margaret M. Moehle, Deceased, et al., Plaintiffs-Appellants, v. CHRYSLER MOTORS CORPORATION, Defendant-Appellee.
    First District (4th Division)
    No. 80-1929
    Opinion filed September 17,1981.

      Edward J. Egan and Robert J. Weber, both of Robert J. Weber, Ltd., of Chicago, for appellants.
    Cassiday, Schade & door, of Chicago (William J. Furey, of counsel), for appellee.
   Mr. JUSTICE JIGANTI

delivered the opinion of the court;

The plaintiffs, Charles F. Moehle, administrator of the estate of Margaret M. Moehle, deceased, and Noma L. Meister, brought this strict product liability action to recover damages arising from an accident involving an automobile manufactured by the defendant, Chrysler Motors Corporation. Following a jury trial judgment was entered in favor of the defendant. On appeal the plaintiffs allege (1) the trial court erred in admitting evidence of compliance with a minimum Federal safety standard because the standard was not relevant to the issue of whether the product was in an unreasonably dangerous condition; and (2) the jury verdict was against the manifest weight of the evidence.

On May 20,1973, Charles and Margaret Moehle, their daughter Ann, and Noma L. Meister were driving in Charles Moehle’s three-week-old Chrysler New Yorker automobile. Charles and Ann Moehle were in the front seat. Margaret Moehle and Noma Meister were in the rear seat. Margaret Moehle and Noma Meister were sitting erect with their seat belts fastened.

While the car was traveling eastbound at 40 to 50 miles per hour on a four-lane highway, another vehicle crossed in front of them driving northward. The other vehicle turned westward, suddenly swerved southward, and reentered the eastbound lanes. The left front of the Moehle car hit the right front of the other vehicle. The vehicles bounced off one another and collided again this time along the right side of the other vehicle.

Charles Moehle was thrown forward by the impact and hit the steering wheel. Ann Moehle was thrown to the floor in the front seat.

As a result of the accident, Margaret Moehle and Noma Meister were seriously injured. Each sustained the most serious injuries in the abdominal area. Moehle died from the injuries. Meister was hospitalized for many weeks.

The rear seat of the Moehle vehicle was attached to the floor of the car by two anchoring mechanisms, one on each end of the seat. Each anchoring mechanism consisted of a Z-shaped anchoring wire, one end of which was connected to the underside of the seat and the other end of which was connected to a U-shaped anchoring bracket which was connected to the floor. The U-shaped anchoring bracket consisted of two hooks each of which wrapped around in such a way as to restrain the anchoring wire. It was the plaintiffs’ theory that as a result of a collision the rear seat could shift sideways from the right to the left allowing the anchoring wire to disengage from the hooks, especially if the hook were bent. Once the anchoring wire disengaged, the rear seat would no longer be restrained and could move forward. As a result of the forward movement of the rear seat, rear passengers would drop downward so that their seat belts would impact them in the soft abdominal area rather than in the bony hip area. It was the plaintiffs’ contention that the anchoring mechanism was therefore in an unreasonably dangerous condition. The defendant denied these allegations contending that the anchoring wire did not disengage, that even if it did disengage the rear seat would be unable to move forward, that the anchoring wire would be less able to disengage if the hook were bent, and, that even if the wire did disengage and the seat move forward, the anchoring mechanism was not in an unreasonably dangerous condition.

Six witnesses testified in support of the plaintiffs’ contention concerning the rear seat movement. Noma Meister testified that she felt the rear seat moving backward and forward. During the accident her body slid under the seat belt so that after the accident it was across her stomach and rib area just below her breast. Another witness testified that immediately after the accident he observed that the rear seat was slanted approximately three to five inches toward the front seat. According to a second witness who was at the scene immediately following the accident, the rear seat was moved forward. The right side of the rear seat was moved forward about six inches such that the witness could put his foot or knee behind Margaret Moehle and touch the floor. A rescue worker testified that when he arrived at the accident scene he noted nothing unusual about the rear passenger compartment of the Moehle vehicle, that it looked “as good as the day it was new” and that he made no observation of any movement of the rear seat cushion. He saw the Moehle vehicle parked across from his fire station more than an hour later and observed that the back seat was pulled out approximately two to three inches.

A mechanical engineer testified on the plaintiffs’ behalf. Referring to photographs of the Moehle car, he testified that one hook of the right anchoring bracket was bent and pointed out shiny metal marks which he said indicated that some force had been applied to the bracket. He also pointed out scrape marks on the floor under the rear seat which he said correspond to the right anchoring wire. He said these marks indicated that the right anchoring wire came loose from the anchoring bracket, whipped along the top of the anchoring bracket, and scraped the floor leaving the marks. In his opinion the right side of the rear seat bench did not remain attached to the anchoring bracket. Rather, the rear seat moved forward some distance beyond the right bracket, pivoting about the left anchoring mechanism which was undisturbed. He also testified that at the time the car was manufactured there existed two alternate types of anchoring devices which at about the same cost would have prevented the movement of the rear seat here.

Another of the plaintiffs’ experts described the phenomena of “submarining.” He stated that when a seat belt is worn properly and performs properly during a crash, a person’s head and arms would flex forward over the seat belt and the belt would impact around the pelvic area. When a seat belt is not worn properly or if it performs improperly, submarining can occur. That is, the person slides under the belt and the belt slides up over the pelvic area to the abdominal area. Retaining a seat bench in its position insures that there is the proper ramp angle to prevent the body from moving downward under the belt. According to the witness, Meister and Moehle suffered classic submarining injuries.

Four occurrence and two expert witnesses testified on these issues for the defense. One of the occurrence witnesses testified that he saw the rear seat in the Moehle vehicle after the accident and it looked normal. An Illinois State Police Officer testified that immediately following the accident he observed the rear seat cushion and did not notice any displacement. Another Illinois State Police Officer who also arrived at the scene immediately following the accident testified that the rear seat cushion looked normal.

' A rescue worker testified that during the rescue the rear seat cushion and seat back were in the normal ánd correct positions and there was a uniform distance from the leading edge of the rear cushion to the rear of the front seat back across the entire passenger compartment. After the accident he returned to the empty vehicle to look under and around the seats for personal belongings. At that time the seat cushion was still a uniform distance from the rear of the front seat back and there was no displacement of the rear seat cushion.

A professor of anatomy with a background in automotive medicine, forensic science, highway safety research and automotive safety engineering who had published extensively in the area of passenger restraint systems and had participated in over 3500 field investigations involving automobile crashes testified as an expert for the defense. According to the witness there is no correlation between the stability of the rear seat cushion and any propensity toward the incidence or occurrence of submarining in high speed collisions. He testified that the injuries sustained by Noma Meister and Margaret Moehle were not the result of submarining. According to this witness, Moehle was not wearing her seat belt properly and her injuries were consistent with hyperflection over the seat belt.

A consulting engineer in the field of automotive engineering also testified as an expert for the defense. According to this witness the Federal standard in effect at the time the car was manufactured required that seat anchoring mechanisms withstand longitudinal forces of 20 times the weight of the seat (20G). He testified that the standard was complied with by Chrysler and that in fact Chrysler tested to 24 times the weight of the seat. According to this witness crash situations involving speeds of 30 to 35 miles per hour will generate forces of 30 times the weight of the seat in the back seat.

In this witness’ opinion the anchoring wire never became disengaged from the anchoring bracket in the Moehle vehicle. He testified that the anchoring bracket has a vertical trap so the anchoring wire could not become disengaged and that in fact it was less likely to become disengaged when the anchoring bracket hook was in a bent condition. Further, the witness testified that the rear seat cushion in the Moehle vehicle was restrained not only by the anchoring mechanism but also by the shape of the undercarriage. According to the witness the seat could not move forward without deforming the undercarriage of the vehicle. In his opinion the rear seat of the Moehle vehicle did not move forward since the undercarriage of the car was not deformed. He also testified that even the complete absence of an anchoring mechanism on the right side of the rear seat would not affect the vertical position of the occupants of the rear seat.

The first issue raised in this appeal is whether the trial court erred in admitting evidence of the defendant’s compliance with a Federal standard which required that rear seat anchoring mechanisms withstand longitudinal forces of 20 times the weight of the seat.

The issue of the admissibility of Federal standards in strict liability cases was addressed by our supreme court in Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534. The Rucker plaintiff alleged that a railroad car was in an unreasonably dangerous condition because of the absence of a so-called “head shield.” The railroad car was manufactured at a time when Federal regulations did not require a head shield. The design of the car therefore met Federal requirements as they then existed. The court held that evidence of compliance with the Federal regulation was relevant to the issue of whether the absence of the head shield was an unreasonably dangerous condition. However, the court rejected the defendant’s argument that evidence of compliance with Federal standards negates liability and held instead that the finder of fact may conclude that a condition is unreasonably dangerous notwithstanding conformity to Federal standards.

In order to prevail the plaintiffs here had to establish that an unreasonably dangerous condition existed in the defendant’s product. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.) A product is unreasonably dangerous if it fails to perform in a manner reasonably to be expected in light of its nature and intended function. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401; Illinois Pattern Jury Instructions, Civil, No. 400.06 (1977 supp.); Illinois Pattern Jury Instructions, Civil, No. 400.06, Comment at 26 (1977 supp.).) The danger must be “beyond that which would be contemplated by the ordinary consumer * * * with the ordinary knowledge common to the community as to its characteristics.” Restatement (Second) of Torts §402A, Comment (i) (1965); Becker v. Aquaslide 'N’ Dive Corp. (1975), 35 Ill. App. 3d 479, 341 N.E.2d 369.

We conclude that under Rucker the fact that a Federal standard required anchoring mechanisms to withstand longitudinal forces of 20 times the weight of the rear seat is relevant to the issue of whether the product was in an unreasonably dangerous condition. That is, the standard is some evidence that the rear seat anchoring mechanism performed in a manner reasonably to be expected in light of its nature and function and of what would be contemplated by the ordinary consumer with the ordinary knowledge common to the community as to the characteristics of rear seat anchoring mechanisms.

The plaintiffs contend that the Federal standard is irrelevant to the facts of this particular case because here the force of impact was greater than and from a different direction than that described in the Federal standard. This argument however, does not bear on the issue of the relevancy of the Federal standard but rather concerns the weight to be given the evidence. The difference between the facts of the instant case and the specifications set forth in the standard were matters to be considered by the jury in determining the weight to be given the evidence that there was a Federal standard and that it had been complied with. The plaintiffs were entitled to and did in fact attempt to establish that notwithstanding compliance with the Federal standard the defendant’s product was in an unreasonably dangerous condition. For example, they cross-examined the defendant’s expert witness at length concerning the Federal standard and they brought out testimony that the conditions described in the Federal standard were markedly different from those surrounding the accident.

Neither are we persuaded by the plaintiffs’ argument that we should modify or limit Rucker. The supreme court’s recent declaration of the law in Rucker is binding, and we are without authority to overrule or modify that law. Aetna Insurance Co. v. Janson (1978), 60 Ill. App. 3d 957, 377 N.E.2d 296.

The plaintiffs also argue that the jury’s verdict is against the manifest weight of the evidence. A jury’s verdict will not be set aside on appeal if there is sufficient credible evidence to support it (McClure v. Suter (1978), 63 Ill. App. 3d 378,379 N.E.2d 1376), unless it appears that the jury was influenced by passion, prejudice or corruption (A. H. Sollinger Construction Co. v. Illinois Building Authority (1972), 5 Ill. App. 3d 554, 283 N.E.2d 508). The determination of where the truth lies in conflicting testimony and the determination of the weight, if any, which should be accorded the witness’ testimony are functions solely for the finder of fact. Pfister v. West (1964), 53 Ill. App. 2d 305, 203 N.E.2d 35; and see Mizowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32.

Here, the evidence was conflicting on many of the issues involved in the cause. For example, according to the defendant’s proof the rear seat anchoring wire did not disengage, even if it did disengage the rear seat did not move, even if the seat had moved, such movement would not have resulted in submarining and that in any event the anchoring mechanism was not in an unreasonably dangerous condition. The plaintiffs’ proof contradicted the defendant’s proof on these issues, but the jury resolved the conflicts in the evidence in favor of the defendant and we will not substitute our judgment for that of the jury.

For the foregoing reasons the judgment of the circuit court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE LORENZ

license: Public Domain

text:
    KIRCHHEIMER BROTHERS CO., Plaintiff and Petitioner-Appellee, v. JEWELRY MINE, LTD., et al., Defendants.—(THE COMMERCIAL UNION ASSURANCE COMPANY, Respondent-Appellant.)
    First District (5th Division)
    No. 80-2823
    Opinion filed September 18,1981.
    Roger A. Bixby and Mary F. Stafford, both of Epton, Ullin, Segal & Druth, Ltd., of Chicago, for appellant.
    Michael D. Weis, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Kirchheimer Brothers Co. (petitioner) obtained a default judgment against Jewelry Mine, Ltd., and Ian J. Scott (defendants) in the amount of $1,600 plus costs. Failing to receive satisfaction of the judgment, petitioner instituted supplementary proceedings authorized by section 73 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 73 (the Act).) On June 25, 1980, The Commercial Union Assurance Company (respondent) was served with a citation to discover assets. In this citation, petitioner sought to discover a claim made by defendants against respondent. The claim arose from a dispute over insurance coverage contained in a policy provided to defendants by respondent, and was then pending in the circuit court of Cook County and captioned as Jewelry Mine, Ltd. v. Commercial Union Assurance Company, No. 79 L 15406.

Respondent, disputing any liability under the insurance policies issued to defendants, moved to quash the citation on the grounds that the claim sought to be discovered was not an asset subject to the citation proceedings.

The circuit court, on October 3, 1980, entered an order denying respondent’s motion to quash. The order stated:

“1. That Commercial Union Assurance Company is hereby restrained from paying over to the Jewelry Mines, Ltd. any portion of an amount not to exceed the amount of judgment entered against Jewelry Mines, Ltd. by the judgment creditor here, plus interest, and court costs.
2. The court maintains jurisdiction over the subject matter and parties and that the Commercial Union Assurance Company is restrained as aforesaid until the case of Jewelry Mines, Ltd. v. Commercial Union Assurance Company, 79 L 15406 currently pending in the circuit court of Cook County is resolved by judgment, settlement or otherwise.
S O #”

Respondent appeals, contending that: (1) the trial court’s order erroneously created a lien against the prior pending lawsuit between defendant and respondent; and (2) the trial court abused its discretion in granting injunctive relief which exceeds the authority of section 73 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 73).

Respondent first asserts that the trial court’s order creates a lien against the prior pending lawsuit which reaches property that is not contemplated under section 73 of the Act. In support of this assertion, respondent cites section 73(2) (a) of the Act, which states:

“(2) When assets or income of the judgment debtor not exempt from execution, a deduction order or garnishment are discovered, the court may, by appropriate order or judgment:
(a) Compel the judgment debtor to deliver up, to be applied in satisfaction of the judgment, in whole or in part, money, choses in action, property or effects in his possession or control, so discovered, capable of delivery and to which his title or right of possession is not substantially disputed.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110, par. 73(2)(a).)

Since the insurance claim made by defendant, the judgment debtor, is “substantially disputed” by respondent, it is argued that the claim falls outside the purview of subsection (2) (a) of section 73.

Petitioner asserts, however, that the trial court’s order was entered pursuant to subsection 4(a) of section 73, which states:

“The citation may prohibit the party to whom it is directed from making or suffering any transfer or other disposition of, or interfering with, any property not exempt from execution, a deduction order or garnishment, belonging to the judgment debtor or to which he may be entitled or which may thereafter be acquired by or become due to him, and from paying over or otherwise disposing of any moneys not so exempt which are due or to become due to the judgment debtor, until the further order of the court or the termination of the proceeding, whichever occurs first.” (Ill. Rev. Stat. 1979, ch. 110, par. 73(4)(a).)

Subsection (4) (a) provides a means of forestalling the judgment debtor or a third party from frustrating the supplementary proceedings before the judgment creditor has had an opportunity to reach assets, indebtedness or income in the possession of debtor or of a third party (Ill. Ann. Stat., ch. 110, par. 73, Committee Comments, at 399 (Smith-Hurd 1968)). A restraining provision under this section does not adjudicate any rights in the property held by the party to whom it is addressed; it merely requires that the party hold property which is subject to the reach of the judgment creditor in status quo until the judgment creditor’s rights can be determined. Ill. Ann. Stat., ch. 110, par. 73, Historical and Practice Notes, at 401 (Smith-Hurd 1968).

We believe that the trial court’s order in the present case is clearly within the purview of subsection 4(a) of section 73 of the Act. The order temporarily restrains respondent from paying over to defendants an amount of money that may be due to the latter from the pending lawsuit that is sufficient to satisfy defendants’ debt to petitioner. Therefore, it properly “prohibit[s] the party to whom it is directed from 0 * * paying over or otherwise disposing of any moneys * * * which are due or to become due to the judgment debtor,” in compliance with section 73(4)(a). The order does not, as respondent argues, grant to petitioner rights to the proceeds of the insurance policy during a dispute over the policy coverage and thereby allow the judgment creditor to assert rights greater than the judgment debtor. Instead, it merely prevents respondent from transferring funds which may become due to the judgment debtor, in order to insure that the latter does not abscond with money that is due and owing to the judgment creditor.

Respondent’s argument that the trial court’s order exposes respondent to the threat of contempt proceedings if conflicting claims are made against the insurance proceeds is without merit. The order does not direct respondent to pay the proceeds to anyone, nor does it adjudicate the rights of any claimants to the proceeds. It merely restrains respondent from paying the amount of the outstanding debt to defendants. Moreover, if defendants’ claim is determined to fall outside the limits of the policy coverage with respondent, then no money will be due to the judgment debtor, and respondent would never face the possibility of conflicting creditors’ claims.

Equally unconvincing is respondent’s assertion that the trial court’s order interferes with the jurisdiction of the court in the prior pending lawsuit between defendant and respondent. We are aware of the well-established rule forbidding a court to interfere with the previous jurisdiction of another court where the parties and the relief sought are the same. (Nolan v. Barnes (1915), 268 Ill. 515, 109 N.E. 316; Haas v. Righeimer (1906), 220 Ill. 193, 77 N.E. 69.) Basically, this rule was created in order to prevent duplicative and vexatious litigation between the same parties over the same cause. (See Tambone v. Simpson (1980), 91 Ill. App. 3d 865, 414 N.E.2d 533.) Suffice it to say that the trial court’s order in the present case causes no duplication of efforts already made between defendant and respondent in the pending lawsuit. The trial court only maintained jurisdiction over the parties in the supplementary proceedings to enforce its restraining order and to protect the interests of the judgment creditor in the event that money is found to be due to the judgment debtor. This order does not interfere in any fashion with the originally filed proceeding, which is concerned with the separate determination of whether defendant’s insurance claim is covered by policies it has with respondent. In fact, the terms of the order actually come into play after the resolution of the insurance dispute, provided that it is resolved in defendants’ favor. Therefore, the order does not “interfere” with the jurisdiction of the pending case.

Respondent next contends that the trial court’s order exceeds the authority of section 73 of the Act. First, respondent argues, the order impermissibly attempts to extend the temporary injunctive relief beyond the automatic six-month termination of the supplementary proceeding. Supreme Court Rule 277(f) provides as follows:

“A proceeding under this rule continues until terminated by motion of the judgment creditor, order of the court, or satisfaction of the judgment, but terminates automatically 6 months from the date of (1) the respondent’s first personal appearance pursuant to the citation or (2) the respondent’s first personal appearance pursuant to subsequent process issued to enforce the citation, whichever is sooner. The court may, however, grant extensions beyond the 6 months, as justice may require.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110A, par. 277(f).)

Even a cursory reading of Supreme Court Rule 277(f) reveals that the supplementary proceeding does not, in every case, automatically terminate after the six months time limit has elapsed. The trial court is authorized to grant an extension beyond that period “as justice may require.” In the instant case, the proceedings were extended, “until the case of Jewelry Mines, Ltd. v. Commercial Union Assurance Company, 79 L 15406 currently pending in the circuit court of Cook County is resolved by judgment, settlement or otherwise.” Therefore, we find that this extension was authorized by the plain terms of Supreme Court Rule 277(f). Moreover, the primary purpose of Rule 277(f) is to prevent the harassment of the judgment debtor or any third party subject to the citation proceeding. (National Bank v. Newberg (1972), 7 Ill. App. 3d 859.) In our view, the order extending the proceeding until the resolution of the other case does not permit harassment of respondent, but safeguards the petitioner’s right to collect his liquidated judgment from defendants.

Respondent next contends that the trial court’s order directs the turnover of proceeds and is, thus, the equivalent of a mandatory injunction which “does not maintain the status quo and is not within the contemplation of section 73.”

However, the Historical and Practice Notes to section 73 of the Act state that a restraining provision is not to be viewed strictly as an injunction. The Comments provide:

“It is simply notice to the person served with the citation that if he transfers property subject to the supplementary proceeding, thereby attempting to impede the administration of justice and place the property beyond the reach of the court, he will be punished either by having a judgment entered against him for the amount of the judgment creditor’s claim or the value of the property, whichever is less, or may be punished as and for contempt.” (Ill. Ann. Stat., ch. 110, par. 73, Historical and Practice Notes, at 402 (Smith-Hurd 1968).)

Furthermore, the order in this case does not, as respondent maintains, direct the turnover of proceeds, but merely restrains respondent from paying to defendants a debt that may become due to them.

We find the case of Hotpoint v. Granite City Furniture, Inc. (1979), 76 Ill. App. 3d 1037, 395 N.E.2d 639, cited by respondent in support of its theory that this order destroys the status quo between the parties, to be distinguishable and unpersuasive. There, Hotpoint initiated supplementary proceedings after failing to receive satisfaction of a judgment against Granite City. Granite City complied with a citation to discover assets and consented to an order which compelled Maryland Casualty, Granite City’s insurer, to deliver to the sheriff potential funds due to Granite City derived from a pending dispute over proceeds from a fire insurance policy. The court held that this order violated the due process rights of Maryland Casualty since it was issued without obtaining personal jurisdiction over the party and gave it no notice or opportunity to be heard. The court further found that the order exceeded the scope of section 73 of the Act since it was not temporary in nature and was phrased in language of a permanent mandatory injunction.

In the present case, of course, it is undisputed that the court exercised valid jurisdiction over respondent and provided it notice and a full opportunity to be heard. Furthermore, unlike the order in Hotpoint, the one in this case merely restrains respondent from paying the judgment debtor until the latter’s rights to the claim are determined; it does not require the party to deliver up anything. Therefore, the order does not violate section 73.

Finally, respondent argues that the trial court abused its discretion in entering the restraining order since other, less restrictive avenues of relief were available to petitioner. As authority for this point, respondent cites section 73(2) (e) of the Act, which authorizes the assignment of a cause of action to the judgment creditor. Ill. Rev. Stat. 1979, ch. 110, par. 73(2) (e).

In our opinion, however, requiring defendants to assign their claim against respondent to petitioner would create undue interference with the pending suit and would prejudice the rights of defendants. The amount of petitioner’s judgment is $1,600 plus costs and interest. Yet, defendant’s complaint in the pending matter prays for a judgment of $125,000 in compensatory damages and $100,000 in punitive damages. If petitioner were assigned the rights of defendants in the dispute over the insurance proceeds, it would be encouraged to negotiate a hasty settlement for an extremely low figure in order to obtain the liquidated sum owed it by defendants. This result would obviously be contrary to defendants’ interests. Therefore, we believe that an assignment under these circumstances would have been inappropriate and inconsistent with the purpose of section 73.

The order of the circuit court is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY DATES (Impleaded), Defendant-Appellant.
    First District (1st Division)
    No. 79-1458
    Opinion filed September 14,1981.

      Steven B. Muslin and Laurie Pathman, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Warren A. Zimmerman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant Larry Dates was convicted of robbery and murder of Anthony Mason, and the attempt murder and aggravated battery of Nicholas Barnes. The trial court sentenced defendant to terms of 6 to 20 years for the robbery, 3 years and 4 months to 10 years for the aggravated battery, 25 to 50 years for the attempt murder, and 50 to 150 years for the murder, all sentences to run concurrently. From these judgments of conviction, defendant brings this appeal.

Defendant has raised the following issues:

(1) Whether there was sufficient evidence to prove defendant guilty beyond a reasonable doubt of the robbery of Anthony Mason;
(2) Whether the State presented evidence which makes it improbable that defendant committed a robbery so that defendant was not proved guilty beyond a reasonable doubt;
(3) Whether the State proved that defendant was guilty of the murder of Anthony Mason;
(4) Whether the court committed reversible error in refusing the tendered instruction on the defensive use of force by an initial aggressor;
(5) Whether the court erred in sentencing defendant and if such sentences are excessive.

For the reasons hereinafter stated, we affirm.

At trial the following pertinent testimony was adduced. Nicholas Barnes testified that on November 23,1976, he was working with Anthony Mason at the Clark gas station at 2310 E. 79th Street in Chicago. At approximately 9 p.m., he and Mason were in the station, and defendant and another man, Charles Simpson, came in. Defendant requested change for a $50 bill, and in asking for the change, took off his shoe, and reached into his sock and pulled out the bill. Barnes told defendant that he could not give him change. Defendant requested change again, and Barnes refused again. Barnes testified that he had seen defendant about five times previously at the station and at his high school. He was not a friend of defendant.

Barnes went outside to service some cars that had arrived in the lot, and Mason, Simpson, and defendant remained in the station. The outside wall of the station consisted of floor-to-ceiling, see-through glass and Barnes observed that Mason was sitting at the desk in the station and that defendant and Simpson were standing up. Barnes saw defendant walk behind Mason into the back room of the station, where money, oil, and cigarettes were stored. Simpson was standing alongside Mason with his left hand in his pocket at this time. The back room was not open to the public.

Defendant returned from the back room after about 15 seconds with both hands in his pockets. Barnes observed that defendant stood next to Mason, who was still sitting at the desk. Defendant, with one hand in the pocket of his coat, took some money out of Mason’s right hand, which was raised about head-high. Barnes had finished servicing the cars, and he then walked back towards the station and saw defendant and Simpson rtin out the front door towards 79th Street. Defendant turned towards Barnes as he was running away and said, “[Y]ou better watch out or you’re going to get robbed one day.” Defendant and Simpson then ran east on 79th Street.

As Barnes opened the front door of the station, Mason yelled out, “I’ve just been robbed, call the police.” Mason appeared excited and in a state of shock. Barnes called the police, who subsequently arrived. After calling the police, Barnes went into the back room and observed that the sum of $40, consisting of rolls of quarters and dimes, was gone. Barnes had placed the money there earlier in the evening.

Barnes testified that defendant was about 5 feet, 9 inches tall, weighed 130 pounds, had brown eyes, black hair, and a medium brown complexion. On the night of the robbery, defendant had been wearing a brown “middy length” leather coat with green pants and green shoes.

On the following day, November 24, 1976, Barnes and Mason were again working at the station. At approximately 8 p.m., while Barnes was in the back room counting money, Charles Simpson entered the station and began using a telephone. After seeing Simpson, Barnes went outside to get Mason. Barnes was carrying a .25-caliber automatic weapon, which belonged to Mason.

Barnes informed Mason that one of the men who had robbed them on the previous day was inside the station and on the phone. He handed Mason the gun. They walked back inside the station, where Barnes instructed Simpson to stand against the wall approximately 10 feet from them. Mason was pointing the gun towards the upper part of Simpson’s body at this time. Defendant then entered the station dressed as he had been on the previous evening and Barnes told him to stand against the wall With Simpson. Barnes asked defendant and Simpson why they had committed the robbery, and both denied participation. Barnes walked towards the telephone and told defendant and Simpson that he was going to call the police and have them picked up.

Barnes testified that as he was talking to the police, he told defendant and Simpson to take off all their clothes. On cross-examination, Barnes stated that he told them to strip to their underwear. He was afraid that they might have a weapon and might try to run out the door. Defendant immediately grabbed Simpson’s arm and pulled Simpson in front of himself. As he did so, defendant reached into the belt of his pants and pulled out a large gun. When Barnes saw the butt of the gun, he told Mason to “take” him, by which he meant that Mason should defend himself.

Barnes dove into the back room and heard several shots. He got up immediately and looked for something that could be used to protect himself. He observed that Mason had been shot in the stdmach and was leaning against the desk. Mason was still holding his gun at this point. He was not pointing it at defendant and was not firing it. As defendant stopd three feet from Mason and prepared to shoot Mason again, Barnes jumped out of the back room and grabbed the arm with which defendant held the gun. Defendant pushed Barnes back, turned around, and shot Barnes after sticking the gun in his right side. The force of the shot pushed Barnes into the back room, where he fell on the floor.

Barnes saw defendant run out of the front door of the station, and subsequently, an ambulance took Barnes to the hospital. The parties stipulated that Anthony Mason died at South Shore Hospital on the night of the shooting. An autopsy revealed that the cause of Mason’s death was a bullet wound puncturing the pancreas, the inferior vena cava, and other arteries.

Another stipulation provided that Charles Simpson had sustained two gunshot wounds and was admitted to Jackson Park Hospital. One bullet was removed from Simpson during surgery on December 6, 1976, and was turned over to the Chicago Police Department. Another bullet was never removed from Simpson.

Officers Michael Rucker and Paul Williams of the Chicago Police Department both testified concerning their attempt to apprehend defendant at the time of and shortly after the shootings on November 24. At about 8:15 p.m., the officers were in uniform and traveling in a marked squad car, going westbound on 79th Street at Crandon. The officers heard gunshots coming from the gas station and had a full view of the station.

Simultaneously, the officers received a radio call that shots were being fired at 2310 East 79th Street. The dispatcher stated that a robbery might be in progress and that he was able to hear shots over the telephone. Both officers observed three men inside the gas station, two of whom had guns. The officers testified that they were able to hear the reports of the guns and that both guns were firing. Officer Williams stated that he heard approximately six or seven reports.

Officer Rucker described the location of the three men inside the station. One man, whom the officer identified as Anthony Mason, was standing near the telephone, slightly bent over. The telephone was on a wall across from the front door and next to the entrance to the back room. Defendant was standing by the front door and both Mason and defendant were holding guns. A third man was standing in the doorway leading to the back room.

Defendant ran out of the station carrying a gun. Officer Williams drove the squad car alongside defendant. Standing five feet from the car defendant pointed the gun towards it as the officers were getting out. Both officers shouted, “Halt, police,” and as defendant pointed the gun in the direction of the officers, both officers shot at him. Defendant fell to the ground, dropped his gun and began to run away. Defendant ran south on Crandon, and then into an alley and through a gangway between two buildings. Officer Rucker fired at defendant through the gangway, and was then called by Officer Williams and told to return to the alley. Officer Rucker called for assisting units, and several cars arrived on the scene. Officer Williams recovered defendant’s weapon (people’s exhibit No. 12) where defendant had fallen down, which was a .38-caliber revolver. The serial number of the gun was obliterated, and three expended .38-caliber cartridge casings were found in the gun. There were no live bullets in the gun. Defendant was subsequently arrested on a burglary charge in Los Angeles, California, in August 1977.

Officer Michael McGuire, an evidence technician with the Chicago Police Department, testified that he recovered five cartridge casings, a live .25-caliber bullet, and a bullet fragment from the gas station area and was unable to recover fingerprints from a gun obtained from Officer Williams or from various surfaces inside the gas station or from the cartridge casings that he recovered.

Officer Joseph Celovsky, a firearms examiner with the Chicago Police Department, testified that he was unable to conclude that people’s exhibit No. 12, defendant’s recovered weapon, either was or was not the weapon that fired the bullet removed from Barnes.

Defendant elected not to testify, and thereafter the jury found defendant guilty of the robbery and murder of Anthony Mason and the attempt murder and aggravated battery of Nicholas Barnes. From these judgments of conviction, defendant brings this appeal.

I

Defendant’s first contention is that he was not proven guilty of robbery beyond a reasonable doubt because the sole evidence of a robbery of the victim (Mason) by the defendant consists of the testimony of Barnes. Defendant also claims that the State presented evidence which makes it improbable that defendant committed a robbery. The above two issues are related and will be considered together. Defendant claims that Barnes did not testify that he witnessed any use of force or threatened imminent use of force by defendant. Barnes merely observed defendant go into a back room and come out again 15 seconds later with his hands in his pocket. He heard no conversation, saw no weapons and testified to no threats or force of any kind. Barnes testified that he had no reason to believe that a robbery was taking place when he saw Mason hand the defendant some money. The evidence consists solely of Barnes’ testimony describing certain nonverbal behavior of the defendant witnessed some 15 feet away. Defendant claims that his conviction should be reduced to theft.

The People maintain that Barnes witnessed the robbery and that after Barnes told defendant that he could not provide change for a $50 bill, Barnes went outside to service some cars. Since the outside walls of the station consisted of floor-to-ceiling see-through glass, Barnes was able to witness events in the station. While Simpson was standing next to Mason with his hand in his pocket, Barnes saw defendant walk behind Mason into the back room of the station, where money, oil, and cigarettes were stored. The back room was not open to the public. Defendant returned from the back room about 15 seconds later with both hands in his pocket and stood next to Mason, who was still sitting at the desk, and with one hand in the pocket of his coat, took some money out of Mason’s right hand, which was raised about head-high. Shortly thereafter, Barnes saw defendant and Simpson run out the front door towards 79th Street. Defendant turned towards Barnes as he was running away and said “you better watch out or you’re going to get robbed one day.” As soon as defendant fled, Barnes re-entered the station and Mason yelled out, “I’ve just been robbed. Call the police.” The People maintain that the evidence overwhelmingly demonstrates that defendant took money from Mason by instilling such fear in him as to induce Mason to part with the money for the sake of his safety.

The most powerful demonstration of the forcefulness of defendant’s crime is the fact that Mason came to work on the following day armed with a .25-caliber automatic pistol, which Barnes had never seen before. Mason had not had the gun on the 23d, and brought it to work on the 24th because of the previous night’s robbery. His purpose in bringing the gun to work was clearly to protect himself. As he prepared to leave the station temporarily to obtain food, Mason gave the gun to Barnes for the latter’s protection. When Barnes subsequently informed him that one of the robbers had returned to the station and had begun to use the telephone, Mason took the gun back. Certainly Mason would not have taken these steps to protect himself from another robbery if defendant’s taking of the money on the previous night had not been by threat of imminent force.

The requirement in robbery prosecutions that the taking of property be by the use of force or by threatening the imminent use. of force (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 1), is satisfied “if the fear of the * 0 * victim was of such nature as in reason and common experience is likely to induce a person to part with his property for the sake of his person.” (People v. Whitley (1974), 18 Ill. App. 3d. 995, 999, 311 N.E.2d 282.) “[I]t is [also] acknowledged by the authorities that the taking of property may be peaceful but the departure with the same may be forceful.” People v. Heller (1971), 131 Ill. App. 2d 799, 802, 267 N.E.2d 685.

Defendant erroneously relies on People v. Williams (1976), 42 Ill. App. 3d 134, 355 N.E.2d 597 where the défendant’s conviction of attempt robbery was reduced to attempt theft, where the court found insufficient evidence of the use of force or the threat of imminent force. Evidence that the defendant in Williams, with both hands in his pockets, had asked a laundromat attendant to fill a paper bag with money, was deemed inadequate to establish the forcefulness element of attempt robbery. In contrast, the instant case involves evidence of forcefulness beyond the fact that defendant and Simpson concealed their hands in their pockets at various points during the robbery. This evidence includes Mason’s shocked and dazed appearance after the crime, his exclamation that he had been robbed, and his effort to protect against another robbery by arming himself on the following night. Defendant’s warning to Barnes that he should “watch out” lest he also be robbed supports the inference of forcefulness, particularly where defendant returned to the station the following night, concealing in his waistband the gun that he then used to attack Mason and Barnes.

Defendant also relies on People v. Was (1974), 22 Ill. App. 3d 859,318 N.E.2d 309, and asserts that Mason’s statement “I’ve just been robbed” is likewise not sufficient proof that force or threat of imminent force was employed against Mason by defendant. In Was, the only evidence that the defendant had taken property of value from the victim consisted of a police officer’s hearsay testimony that the victim had said that defendant had “robbed him.” The victim in Was died prior to trial from unrelated causes. In the instant case, Anthony Mason’s statement that he had been robbed was merely a portion of the evidence that defendant’s taking of the money was accomplished by force or by threatening the imminent use of force.

Defendant further claims that People v. Rossililli (1962), 24 Ill. 2d 341, 181 N.E.2d 114, supports his argument that there was insufficient evidence of force or threat of imminent force by defendant toward Mason to constitute robbery. In Rossililli, the supreme court reversed the defendant’s conviction of rape and robbery where the evidence was so improbable and unsatisfactory as to leave a grave and substantial doubt of the defendant’s guilt.

In the case at bar, the State claims that the fact that money was taken from Mason and from the back room of the station is undisputed. Barnes testified that $40 in rolls of quarters and dimes, which he had placed in the back room earlier in the evening, were determined missing shortly after the robbery. Moreover, Mason’s shocked and dazed appearance after the crime, his characterization of it as a robbery, and his subsequent effort to use an automatic pistol for self-protection demonstrate that Mason was threatened with the imminent use of force during the robbery. It is immaterial that defendant’s actions during the robbery, including his entrance into a private area of the station, while sufficient to arouse Barnes’ suspicions were not so violent as to induce Barnes to abandon his work in the lot or to run to Mason’s aid. Although defendant minimized the importance of his and Simpson’s concealing their hands in their pockets at various points during the crime, it is clear that such activity, combined with a demand for money, would have appeared threatening to any reasonable person. The evidence overwhelmingly demonstrates that Mason was in fact threatened. Thus the State argues that the cases cited by defendant are not in point and that the evidence adduced at trial established beyond a reasonable doubt that the offense of armed robbery was committed by defendant at the time and place as charged and that the conviction should stand. We agree.

II

Defendant next contends that it is clear from the above stated evidence that the State has not proven beyond a reasonable doubt that defendant was the criminal agency that caused the death of Mason because the evidence strongly supports the hypotheses that Mason died as a result of one of his own bullets which ricocheted off the walls of the station house. Barnes testified that he saw Mason fire a pistol at Simpson and the defendant. However, no one saw the defendant fire his gun. Officer Rucker testified that he did not see defendant fire his gun. Mason’s pistol was a .25-caliber automatic, and the defendant’s gun was a .38-caliber revolver. Chicago police officer McGuire testified that he found four .25-caliber spent cartridges in the station house, and one near the pumps. A ballistics expert with the Chicago police testified that the five discharged cases which Officer McGuire recovered at the gas station were fired from the same .25-caliber semi-automatic weapon. None of the bullets recovered from the scene of the incident were determined to have been fired from a .38-caliber revolver. Moreover, the bullet which lodged in Mason and which was removed from him at South Shore Hospital was subsequently lost by the South Shore Hospital personnel.

The People maintain that there is no evidence that Simpson was unarmed when he entered the station on November 24 and began to use the telephone. He was soon confronted by Barnes and Mason, with Mason pointing a gun towards the upper part of Simpson’s body. Defendant then entered the station with his gun and several shots were fired. The police officers testified that they were able to hear the reports of the two guns and that both guns were firing. Officer Williams stated that he heard approximately six or seven reports. It does not necessarily follow that Simpson was unarmed because he did not produce a gun.

The evidence upon which defendant’s conviction of murder was based was circumstantial in that Barnes did not testify that he saw defendant fire his gun in the direction of Mason. However, Barnes did testify that he heard a lot of shots fired, and that “I saw Anthony Mason shot in the stomach region and he was laying on the desk, and Larry Dates ran in front of the doorway of the back room and was aiming his gun getting ready to shoot him again.” To warrant conviction of a crime based on circumstantial evidence, the proof must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing a reasonable certainty that defendant was the responsible agency. Every reasonable hypothesis of the defendant’s innocence which finds a basis in the evidence or lack thereof must be excluded in order to render a conviction. (People v. Stokes (1981), 95 Ill. App. 3d 62, 419 N.E.2d 1181.) Here, the evidence sufficiently disposed of the only reasonable hypothesis of defendant’s innocence, which is that Mason’s death resulted from his own gun and the authorities cited by defendant in support of his position are misplaced as to the circumstances of this case. We believe it is peculiarly within the province of the jury to weigh the evidence, and credibility of witnesses and determine the facts. Based on this record, the jury properly found defendant guilty of the offense of murder beyond a reasonable doubt.

Ill

Defendant next asserts that the court committed reversible error in refusing the tendered instruction IPI Criminal No. 24.09 on the defensive use of force by an initial aggressor. Defendant claims that the State, through the testimony of its witness, Barnes, introduced the theory and evidence that the defendant was the initial aggressor because of the alleged robbery on November 23 and that upon the return on November 24, Barnes and Mason, perceiving the defendant to be the initial aggressor on the previous evening, responded to the defendant with deadly force. The court did give the defendant’s general tendered instruction which states the circumstance under which a person is justified in the use of force to defend himself.

The State argues that it is undisputed that defendant went to the station on the day after the robbery concealing a .38-caliber revolver in his waistband and that the inference that defendant planned to commit another robbery of Mason or to fire upon Mason and Barnes is inescapable. Defendant has not admitted committing the acts and has invoked the defense of self-defense and justifiable use of force as a justification for his conduct and concedes for the purpose of this argument only that the State claims the robbery was an initial act of aggression. Where defendant returned to the station defendant cannot claim justification in his use of deadly force upon Mason’s attempt to hold him for the police. Moreover, after shooting Mason once in the stomach, defendant approached to within three feet of Mason and prepared to shoot him again. Defendant cannot claim self-defense or the defensive use of force under the facts and circumstances of this case.

In People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31, the court held that the defendant is not entitled to a self-defense instruction, even where he admits committing the act, unless there is “some evidence of self defense presented at trial.” The court held on the facts of that case that the evidence presented was insufficient to warrant a self defense instruction. To hold otherwise the court stated would allow a defendant to demand unlimited instructions based upon the “[m]erest factual reference or witness’ comment.” 63 Ill. 2d 534, 541, 349 N.E.2d 31, 34.

In the present case the court gave the defendant’s self-defense instruction IPI Criminal No. 24.06 but declined to give the defensive use of force by an initial aggressor instruction IPI Criminal No. 24.09, as requested by defendant, as being inappropriate for lack of evidence in support thereof. We have examined the cases cited by defendant and find that they are factually distinguishable. We therefore hold that the instruction of self defense was sufficient under the facts and circumstances of the case for the jury to evaluate defendant’s alleged conduct and that it was not error to refuse such tendered instruction because the evidence failed to meet the minimal level required to warrant such instruction. People v. Bratcher, see also People v. Barnett (1977), 48 Ill. App. 3d 121, 362 N.E.2d 420.

Defendant’s fourth argument on appeal is that the court erred in the imposition of sentences of 50-150 years for the murder of Anthony Mason, 25-50 years for the attempted murder of Nicholas Barnes, 6-20 years for the robbery of Anthony Mason, and 3 years 4 months-10 years for the aggravated battery of Nicholas Barnes as such sentences are excessive and should be reduced. Defendant argues that the alleged murder and attempt murder occurred during an affray and were not premeditated; also, that the defendant’s sentence for the robbery conviction was likewise excessive in view of the fact that defendant allegedly took only $40 from Mason. Moreover, defendant was only 21 years old at the time of the alleged offenses and that his future goals included finding a job, going to a trade school for tailoring and getting married.

In the absence of abuse of discretion, the sentence of the trial court will not be altered. The trial court is normally in a superior position to determine the punishment to be imposed than the courts of review. (People v. Lykins (1978), 65 Ill. App. 3d 808, 382 N.E.2d 1242; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Under the facts and circumstances of this case it cannot be said that the sentences imposed constitute an abuse of discretion.

For the reasons expressed in this opinion, the judgment of the trial court is affirmed.

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ„ concur.


author: Mr. JUSTICE WILSON

text:
      In re ESTATE OF JENNY JOUTSEN. — (J. STERLING MORTIMER, Guardian of the Estate of Jenny Joutsen, Petitioner-Appellee, v. LAWRENCE WOODFIELD et al., Respondents-Appellants.)
    First District (5th Division)
    Nos. 80-0135, 80-1151 cons.
    Opinion filed September 4, 1981.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Miles N. Beermann and Howard A. London, of counsel), for appellants.

      Patrick T. Murphy, Karin H. Swanson, and Robert A. Merrick, Jr., all of Chicago, for appellee.
   Mr. JUSTICE WILSON

delivered the opinion of the court:

Following a bench trial, respondents, Lawrence Woodfield and Donna Bagnuolo (now married), were ordered to pay the sum of $90,027.26 to the guardian of the estate of Jenny Joutsen, petitionerappellee. On appeal, they contend that (1) the court did not have the authority to order them to repay $90,027.26 to the estate; (2) the court’s finding of Jenny Joutsen’s incompetency is against the manifest weight of the evidence; and (3) the court’s finding that respondents received $90,027.26 from Jenny Joutsen is against the manifest weight of the evidence. A separate appeal to be considered with this case involves a supplementary citation to discover and recover assets brought to recover alleged assets of the estate transferred to a third party. The court ruled that no prima facie case was established, and petitioner appeals. The pertinent facts follow.

On May 11, 1978, the trial court entered an order appointing J. Sterling Mortimer as guardian ad litem for Jenny. Following his report, the court adjudged Jenny an incompetent. The guardian filed a petition on October 18,1979, for discovery and recovery (Ill. Rev. Stat. 1977, ch. 110>2, pars. 16 — 1, 16 — 2) against respondents alleging that on November 28,1977, Jenny’s estate included $74,000 in four savings accounts and four $5,000 United States savings bonds. He further alleged that respondents had obtained possession of these monies and other personal property and had converted or embezzled this property by compelling Jenny to sign papers which she did not and could not understand as a result of her impaired mental capacity. The petition requested the return of all personal property belonging to the estate and the voiding of any documents purporting to transfer funds from Jenny to respondents.

Jenny resided with her husband, Timo, at 6211 West Fullerton until his death on November 28,1977. On December 3,1977, Jenny executed a power of attorney to Bagnuolo, which was prepared and witnessed by Samuel Del Principe, an attorney. He indicated that at Bagnuolo’s request, he visited Jenny at her home initially on December 1, 1977. Del Principe also prepared a State inheritance tax return, Federal estate tax return and a will on Jenny’s behalf. The will, also executed on December 3,1977, and witnessed by Woodfield, provided that Bagnuolo would inherit all of Jenny’s property upon her death. Del Principe testified that before he executed the power of attorney he determined that Jenny was mentally competent. He also explained each paragraph to her before she signed it, and Jenny confirmed that she wanted Bagnuolo to act on her behalf.

Bank records indicated that on November 28, 1977, Jenny had approximately $75,728.74 in four bank accounts and $20,000 in United States savings bonds in $5,000 denominations. These bank funds were collected and deposited into two joint accounts at the Midwest Bank & Trust Company in the names of Jenny Joutsen and Donna Bagnuolo. Bagnuolo secured access to the Joutsen safety deposit box which contained the savings bonds on March 17, 1978. The bonds were redeemed and the proceeds were deposited into the joint checking account of Jenny and Bagnuolo at the Bank. Bagnuolo withdrew $72,302.83 from the joint account and loaned the money to Woodfield, who in turn loaned the money to Woodfield Industries. Other funds were then withdrawn from these joint accounts and placed in the joint accounts of Woodfield and Bagnuolo. The loan was executed three weeks after guardianship proceedings had been instituted.

Mortimer testified that when he visited Jenny in her home on May 28, 1978, he found Jenny to be totally disoriented even initially as to her own identity. She had little food in her house and still believed that her husband and son were alive. She was not aware of the petition to appoint a guardian. It was his opinion that Jenny manifested complete disorientation and had a complete inability to handle her affairs or her person. The only type of identification she could make was at least 20 years prior to the time he was talking to her.

Dr. Irving Blumenthal has been Jenny’s physician since September 1966. Between 1966 and 1978 he saw Jenny 8 to 10 times a year. His initial visits with her showed that she was suffering from hardening of the arteries and from approximately 1971 on, he began to treat her basically for senility. Between 1971 and 1978, Jenny’s illness grew progressively worse. On September 16, 1977, Dr. Blumenthal visited Jenny and found that she lacked the mental capacity to make decisions and, because of this, was easily influenced. The next time he saw Jenny was on June 5, 1978, in the hospital. At that time she still did not realize her husband was dead.

On cross-examination, Dr. Blumenthal admitted that he did not see Jenny between September 16, 1977, and June 5, 1978, and that prior to 1978, Jenny could understand things momentarily.

Margaret Tonkovic testified that she lived next door to Jenny, on West Fullerton. She indicated that the day following Timo’s death, Jenny told her that Timo was not dead, but at work. Jenny also asked for her son, John, who has been dead for approximately six years. Tonkovic also stated that Bagnuolo had told her that Timo had been dead for about three days before Jenny informed her that a strange man was in her husband’s bed. She next saw Jenny in late February or early March 1978. Jenny was locked out of her apartment, could not get in, and indicated that Timo was sleeping.

Woodfield testified that he had between 10 and 20 conversations with Timo and Jenny regarding financial matters, prior to Time’s death. He testified that Timo agreed to lend him between $75,000 and $100,000 for his business. After Time’s death, Jenny told him to discuss finances with Bagnuolo. Woodfield indicated that on several occasions he memorialized his conversations with Timo or Jenny concerning the loan and identified respondents’ exhibits 1, 2, 4, 6 and 7 as copies of those letters. The court refused to allow these exhibits into evidence. He received $72,302.83 from Bagnuolo in May 1978, who had obtained the funds from a bank account she held jointly with Jenny. The loan was secured by a subordinated mortgage on his Lincolnwood, Illinois, home. He admitted that he had not made any payments toward the loan, the terms of which were $250 a month at 1% interest.

On cross, Woodfield denied receiving a letter from the public guardian requesting a return of the loan, but he later admitted that his attorney had inquired about the letter and the loan. It was his opinion that Jenny was reasonably lucid at all times.

Dr. Marvin Ziporyn, a board-qualified psychiatrist, testified on behalf of respondents. He determined that Jenny suffered from organic brain syndrome associated with arteriosclerosis. It was his opinion that she most likely had periods of remission in which she could be lucid; however, it was possible that she did not. During a period of remission she could have understood the provisions of the power of attorney. He admitted that there was nothing in his interview with her which could lead him to conclude that Jenny went through any periods of remission.

On rebuttal, Dr. Blumenthal stated that as long as he had known Jenny, she had gone through no periods of remission and that she was incompetent after 1974.

Dr. Leroy P. Levitt, a psychiatrist specializing in geriatrics, also testified on rebuttal. He indicated that the loss of a spouse in one who is suffering from arteriosclerosis can cause extreme stress and deterioration. There can be an apparent remission which can last from a few hours to a day, but if there is any remission, it usually involves non-complex matters.

The court entered an order directing respondents to pay the estate $90,027.26. This determination was based upon the drafts Bagnuolo collected from the various bank accounts of the Joutsens totalling $70,027.26, and the four redeemed $5,000-denomination United States savings bonds. These funds were all placed in accounts at the Midwest Bank under Bagnuolo’s control. A notice of appeal was filed by Miles Beermann on behalf of respondents on January 11, 1980. He received a retainer of $10,000 from respondents and an additional $1,000 to represent them on appeal. On January 17, 1980, respondents had executed an affidavit filed in the appellate court in which they indicated that they had only approximately $1,300 in cash, a home and other items of personal property. Based upon this affidavit, the guardian of Jenny Joutsen filed a supplemental citation to discover and recover assets against Miles Beermann on February 1, 1980. The court dismissed the citation for failure to state a cause of action ruling that petitioner had not made a prima facie case. Petitioner appeals from that order.

Opinion

Respondents initially contend that the court did not have the power to order them to repay the loan. They argue that the evidence shows that Woodfield borrowed the money from Jenny and then loaned it to Woodfield Industries. Thus, it is clear that neither respondent had any money belonging to the estate and the court exceeded its authority under sections 16 — 1 and 16 — 2 (Ill. Rev. Stat. 1977, eh. llOJá, pars. 16 — 1,16—2). Furthermore, there was no finding that either respondent converted or embezzled Jenny’s funds.

The objectives of a citation proceeding are to obtain the return of personal property belonging to the estate but in the possession of, or being concealed by others, or to obtain information to recover estate property. (Lombardi v. Lepkowicz (1975), 28 Ill. App. 3d 79, 328 N.E.2d 328.) A finding of the trial court that certain property belonged to the estate will not be disturbed on appeal unless it is against the manifest weight of the evidence, (In re Estate of Weisberg (1978), 62 Ill. App. 3d 578, 378 N.E.2d 1152), as the trial court in such proceedings is authorized to determine all questions of title, claims of adverse title and the right of property. In re Estate of Denier (1980), 80 Ill. App. 3d 1080, 400 N.E.2d 641.

In the pending matter, the trial court found that Jenny was unable to make and comprehend decisions about her person or her estate. Under these circumstances, she was incapable of understanding the power of attorney given to Bagnuolo, and, further, could not have agreed to or understood the terms of any “loan” to Woodfield. Legal documents executed during that time would necessarily be void. (See In re Estate of DeKoekkoek (1979), 76 Ill. App. 3d 549, 395 N.E.2d 113.) The securing of this “loan” by a mortgage on the Woodfield house neither legitimatized this transaction nor protected Jenny’s interests. Moreover, the terms of the will executed on the same day as the power of attorney made Bagnuolo, who is now married to Woodfield, the sole heir of Jenny, and thus the “loan” would probably be extinguished upon Jenny’s death. Respondents capitalized on Jenny’s mental incapacity, and in essence, converted her funds to their own use..

A fiduciary relationship was established between Bagnuolo and Jenny, and Woodfield collaborated with Bagnuolo; thus, it was respondents’ burden to show that the transactions complained of were fair and not the result of undue influence. (In re Estate of Weisberg.) There was no evidence adduced at trial which showed that any of the funds in question were used for Jenny’s benefit. The weight of evidence against respondents was for the trier of fact to evaluate, and the findings must be sustained unless wholly unsupported by the evidence. (ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 413 N.E.2d 1299.) The trial court’s findings were consistent with the objectives of the citation proceeding, and we cannot conclude that the court exceeded its authority under the Probate Act.

Respondents next argue that the court’s finding of Jenny’s incompetency is against the manifest weight of the evidence. Respondents presented a number of witnesses, all attesting to Jenny’s competency during the period in question and to her ability to have lucid intervals. Their contact with her, however, did not involve complex matters and their objectivity was suspect. Her physician, who had been treating her regularly since 1966, testified that she had been suffering from senility since 1971 and it was irreversible. He did not notice any remission of her symptoms and, in fact, she grew progressively worse. His observations were corroborated by some of Jenny’s neighbors and her guardian. Moreover, respondents’ expert witness concluded that Jenny was incompetent, and it was possible that during the period in question she did not have lucid periods.

Jenny’s competency must be determined by her ability to transact ordinary business, to understand the nature of the business in which she is engaged and the effect of what she is doing. (See Freiders v. Dayton (1978), 61 Ill. App. 3d 873, 378 N.E.2d 1191.) The trial court determined that Jenny did not have the capacity to perform and understand business, to either manage her person or her estate at the time in question and subsequently, and we believe the record more than adequately supports this determination.

Finally, respondents argue that the trial court’s finding that they obtained $90,027.26 from petitioner’s estate is not supported by the evidence, as the record only shows that Woodfield borrowed $72,302.83 from Jenny. We disagree.

The trial court based its finding on the unaccounted-for monies funneled from the Joutsens’ accounts and redeemed savings bonds into the accounts under respondents’ control. The record reveals that the court’s finding is not against the manifest weight of the evidence to be subject to reversal on appeal. In re Estate of Denier.

Petitioner appeals the trial court’s dismissal of the supplemental citation to discover and recover assets against respondents’ attorney. Petitioner has asserted that the payment to Beermann constituted a transfer of assets of the estate, as respondents’ affidavit indicated they only had approximately $7,300 in assets. Beermann received approximately $11,000 as a retainer after the judgment was entered against respondents.

Petitioner must establish that property belonging to the estate was transferred to a third party in order to prevail on a supplemental petition. (See In re Estate of Garrett (1967), 81 Ill. App. 2d 141, 224 N.E.2d 654.) The monies used to retain Beermann could have been obtained from a number of other sources outside of respondents’ personal assets, e.g., borrowed from relatives. As such, we must agree with the trial court that petitioner failed to establish a prima facie case and affirm the dismissal of the supplemental petition.

For the foregoing reasons, we affirm the orders of the trial court insofar as they are applicable to both respondents and petitioner.

Affirmed.

LORENZ and MEJDA, JJ., concur.


author: Mr. JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. WILLIE L. BRUMFIELD et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-70
    Opinion filed September 11, 1981.

      Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Joel A. Stein, and Deborah M. Dooling, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Thomas W. Murphy, Assistant Public Defender, of counsel), for appellees.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendants, Willie L. Brumfield and Terry Gregory, were charged with one count of possession of cocaine and one count of possession of heroin. (Ill. Rev. Stat. 1977, ch. 56/2, pars. 1402(a), 1402(b).) Prior to trial, defendants’ motion to quash the search warrants and to suppress the evidence was granted. On appeal, the State contends that the trial court erred in granting defendants’ motion.

On March 10, 1978, four search warrants were issued authorizing a search of Brumfield and the premises located at 2929 West Arthington, 1569 South Kedzie, 4501 South State and 1526 North Austin. Brumfield owned the above premises while Gregory was a tenant at 2929 West Arthington.

On March 11, Officer Riley observed Brumfield exit the premises at 2929 West Arthington and depart in a Cadillac. After Brumfield had driven a few blocks, he was stopped by Riley and shown a copy of the search warrant. Although a search of Brumfield and his automobile failed to turn up any controlled substances, Riley continued to detain him.

Thereafter, Brumfield was taken back to 2929 West Arthington and the second floor apartment was searched pursuant to the previously issued warrant. This search resulted in the seizure of more than 30 grams of heroin and less than 30 grams of cocaine.

At trial defendants asserted that after the search of Brumfield failed to disclose any illegal contraband, he should have been released. They argued that his continued detention amounted to an illegal arrest and that everything that followed the arrest was invalid. The State argued that the seized evidence flowed from a valid search warrant and not Brumfield’s arrest; that the search of the apartment was not in any way occasioned, precipitated or effected by the continued detention of Brumfield; and that, therefore, the evidence was not the “fruit of the poisonous tree.”

In allowing defendants’ motion, the court stated:

0 ° [I]t appears to me that after an arrest is made of an individual on the street, then, of course, nothing being found on him and not seeing him in the commission of any offense, that he then is taken to various buildings which he may or may not own in attempting to find something in those buildings, and it sounds like it is a real fishing expedition or the State should produce the confidential informant who might produce whatever evidence he has, but I would grant the motion of the defendants.”

This appeal followed.

Opinion

The State contends that the granting of defendants’ motion to quash the search warrants and to suppress the evidence was manifestly erroneous. It argues that seized evidence was discovered during the execution of a valid search warrant which was issued prior to Brumfield’s arrest. Alternatively, the State argues that even if the seized evidence somehow flowed from Brumfield’s arrest, its suppression was manifestly erroneous since its discovery was totally independent from any illegality associated with the arrest and would have been gained regardless of Brumfield’s arrest. Defendants maintain that the affidavits supporting the search warrants failed to meet the constitutional requirements of Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637,89 S. Ct. 584, and that therefore the trial court properly granted their motion to suppress. Defendants also assert that the court’s ruling was not based on any fruit of the poisonous tree theory.

In Aguilar v. Texas, the United States Supreme Court enunciated the criteria upon which search warrants issued on the basis of information supplied by an undisclosed informant are to be judged. That court held that the issuing judge must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or his information reliable. (People v. Mitchell (1970), 45 Ill. 2d 148, 258 N.E.2d 345; see also Spinelli v. United States.) The affidavit is presumed valid, and allegations of negligence or innocent mistake are an insufficient attack against it. (People v. O’Dell (1980), 84 Ill. App. 3d 359, 405 N.E.2d 809; see also Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) It is to be interpreted in a realistic manner, and not tested by elaborate technical requirements. (People v. Thomas (1975), 62 Ill. 2d 375, 342 N.E.2d 383.) Generally, any challenge to the issuance of a search warrant is limited to questions concerning the sufficiency of the affidavit and an accused is not allowed to go beyond the “four corners” of the affidavit to show the lack of probable cause. (People v. O’Dell; People v. Jakuboski (1976), 42 Ill. App. 3d 1067, 356 N.E.2d 646; see also People v. Bak (1970), 45 Ill. 2d 140, 258 N.E.2d 341.) In any event, a defendant is not entitled to the production of the informant for the purpose of attempting to disprove the allegations made under oath which the issuing judge found supportive of the warrant. (People v. Jakuboski; People v. Berry (1970), 46 Ill. 2d 175, 263 N.E.2d 487.) Finally, a suppression order will be reversed only if it is manifestly erroneous. People v. Davis (1980), 86 Ill. App. 3d 557, 407 N.E.2d 1109.

The search warrants in the instant case were obtained on the basis of the following:

“I, Thomas Riley a Chicago Policeman had a conversation on March 10, 1978 with a Confidential Informant (Cl) whom I have known for approximately two years. During the time I have known this Cl he has given me information relative to narcotics law violations on four separate occasions. The information supplied to me by this Cl resulted in four narcotic raids in which narcotic was [sic] recovered each time (verified by the Crime Lab of the Chicago Police Department) and one arrest was made each time. Two of the persons arrested have their cases still pending in court, one was discharged and one person was convicted of narcotic law violations. This Cl told me that on this date (March 10, 1978) he was with one Willie Brumfield a M/N at the second floor apartment at 2929 W. Arthington Chicago, Illinois and while there he observed Willie Brumfield place tinfoil packets containing heroin which was brown in color into brown paper bags for delivery to locations owned and run by Willie Brumfield for further distribution of the heroin. The Cl told me that he knew that it was in fact heroin because Brumfield gave the Cl some of the heroin for helping Brumfield distribute the heroin. The Cl stated that he snorted some of the heroin and that he knew it was in fact heroin because he has been using heroin for the past few years. The Cl stated that when he left the second floor apartment at 2929 W. Arthington Chicago, Illinois that Brumfield had a still larger quantity of heroin which was contained in tinfoil packets in his possession and under his control when the Cl left.”

A fair and realistic review of the above affidavit demonstrates that sufficient facts were alleged to satisfy Aguilar’s two-prong test. The instant affidavit contains numerous facts which readily informed the issuing judge of the underlying circumstances from which Officer Riley concluded that the informant was credible and the information reliable. First, Riley swore that he had known the informant for approximately two years and, during that time, the informant had supplied him information concerning narcotics violations on four separate occasions. On each occasion, narcotics were recovered and an arrest was made. Two of the persons arrested have their cases still pending, one was discharged and the fourth was convicted. These facts are sufficient to support the issuing judge’s finding that the informant was reliable. Compare People v. Mitchell (1970), 45 Ill. 2d 148, 258 N.E.2d 345; People v. Thomas (1975), 62 Ill. 2d 375, 342 N.E.2d 383.

Likewise the instant affidavit sufficiently states the underlying circumstances from which the informant concluded that the narcotics were where he claimed them to be. First, the affidavit stated that the informant told Riley that on March 10, 1978, he had been with Brumfield at the second floor apartment located at 2929 West Arthington. There he observed Brumfield place tinfoil packets containing heroin into bags for further distribution. (Compare People v. Mitchell.) The affidavit also detailed the appearance of the substance, the informant’s experience in the area of drug identification and how he arrived at his conclusion that the brown substance was heroin. These facts amply support a finding that narcotics were present at 2929 West Arthington.

While in limited circumstances a defendant may challenge the validity of an affidavit supporting a search, such challenges must be supported by more than a mere desire to cross-examine the affidavit or the confidential informant. To mandate an evidentiary hearing, a defendant must allege deliberate falsehoods or reckless disregard for the truth. In addition, these allegations must be accompanied by an offer of proof which specifically points out the portion of the affidavit that is claimed to be false and a statement of supporting reasons. Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

In the instant case, defendants merely asserted that Brumfield’s continued detention, after a search failed to disclose any illegal contraband, amounted to an illegal arrest and that, therefore, everything that followed was invalid. They did not allege that the affidavits contained deliberate falsehoods or a reckless disregard for the truth. Consequently, an evidentiary hearing into the validity of the supporting affidavits was not appropriate. In addition, defendants made no offer of proof specifically pointing to portions of the affidavit claimed to be false. Defendants’ bare assertion that Officer Riley’s actions “clearly demonstrate that [he] placed no reliance upon the confidential informant and that [he was] on a true fishing expedition” is plainly insufficient. First, this assertion does not in any way suggest that the affidavit contained any falsehoods. Secondly, a plausible explanation for Riley’s actions is that he relied extensively on information supplied by the informant and that he did not wish to relinquish custody of Brumfield which would only necessitate his relocation and arrest after the search of the above named premises revealed narcotics. Accordingly, we find that the affidavits in the instant case met the constitutional requirements of Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584.

Furthermore, we agree with defendants’ assertion that the present suppression order could not properly be based upon the “fruit of the poisonous tree” theory. Although the State concedes that Brumfield’s search failed to yield any incriminating evidence and that he should have been released, the mere fact that an arrest is improper presents no constitutional issue unless defendants were prejudiced in some way. (United States v. Radford (7th Cir. 1971), 452 F.2d 332.) Defendants have failed to assert how or in what they have been prejudiced. First, Brumfield’s search did not reveal any incriminating evidence. Nor was any evidence obtained through his continued detention. It follows that where no evidence is obtained from an illegal arrest, there is nothing to exclude. (United States v. Radford.) The evidence sought to be introduced in the present case was obtained through the search of the premises located at 2929 West Arthington. This search was conducted and authorized pursuant to a valid search warrant which had been issued prior to Brumfield’s detention. Consequently, Brumfield’s detention is totally unrelated to the issuance of the instant search warrants. To exclude the evidence in the present case would necessitate a finding that Brumfield’s improper detention reached back and tainted the validity of the remaining search warrants. However, the purpose of the exclusionary rule is to enjoin the State from benefitting from evidence unlawfully obtained; it does not reach backward and taint information that was in official hands prior to any illegality. (United States v. Crews (1980), 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244; People v. Sampson (1980), 86 Ill. App. 3d 687, 408 N.E.2d 3.) Accordingly, such a finding would be unwarranted.

Finally, evidence is not the fruit of the poisonous tree if it (1) is discovered by an independent source; (2) is sufficiently distant in causal connection from the illegal search and seizure so that the connection has been so attenuated so as to dissipate the taint, or (3) the evidence inevitably would have been gained without the unlawful search or arrest. (People v. Horton (1977), 49 Ill. App. 3d 531, 364 N.E.2d 551; United States ex rel. Owens v. Twomey (7th Cir. 1974), 508 F.2d 858; see also Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.) In the instant case, it was the search of the premises located at 2929 West Arthington that revealed the illegal contraband, not Brumfield’s detention. This search was conducted pursuant to a valid search warrant. Brumfield’s continued detention was in no way the catalyst that revealed the contraband. Consequently, the discovery of the seized substance was independent of Brumfield’s improper detention. Additionally, absent Brumfield’s detention, proper police procedures relative to the issuance of a search warrant would have entailed a search of the premises. Such a search would have inevitably disclosed the evidence now sought to be suppressed. Accordingly, we find that the order quashing the search warrants and suppressing the evidence to be manifestly erroneous.

For the reasons stated, the judgment of the trial court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

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