author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH PLESHKO, Defendant-Appellant.
    First District (5th Division)
    No. 81—2631
    Opinion filed December 23, 1983.

      Steven Clark and Donna Finch, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Richard B. Levy, and Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of burglary and received a prison term of four years. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1.) On appeal he contends that: (1) the trial court admitted evidence of unrelated criminal activity; (2) defense counsel incompetently failed to object to the admission of said unrelated crimes and lacked knowledge of the basic concepts of criminal procedure; (3) the evidence did not establish guilt beyond a reasonable doubt; (4) the prosecutor improperly commented on defendant’s failure to testify; and (5) the trial court failed to give the proper jury instruction on circumstantial evidence. We affirm.

Initially, we note that nearly half the record on appeal is devoted to extensive pretrial proceedings which address defendant’s motions and arguments thereon. Because defendant contends, for the most part, that his privately retained counsel provided inadequate legal representation, we will set forth the pertinent facts of the pretrial hearings before discussing the merits of this cause.

The record reveals the defendant and codefendant Rick Moutrey were arrested in Chicago at approximately 9:15 p.m. on August 6, 1980, while they were conversing with friends in the vicinity of Hamlin and Wellington Streets. Both men were subsequently charged with one count of burglary. Prior to trial, on April 1, 1981, a hearing was held on defendant’s motions to quash his arrest, to suppress his post-arrest statement and for a separate trial

First, defendant argued that his arrest was unlawful because he was unaware that a warrant was outstanding at the time and because the arresting officer, James Gillespie, neither had a warrant nor reasonable grounds to take defendant into custody. In rebuttal, Gillespie testified for the State that while on patrol he received a radio assignment that a man who was wanted on a burglary warrant was in the 2900 block of Hamlin Street. Gillespie stated that he and his partner, James Bart, proceeded to that area in their squad car and upon arrival they saw defendant and others standing near a parked motorcycle. Gillespie asked for identification and was promptly shown everyone’s drivers licenses. He then handcuffed defendant, informed him that he was under arrest and took him to the fourteenth district police station. After checking the police computer Gillespie discovered three arrest warrants under defendant’s name.

On cross-examination, Gillespie stated that defendant was neither shown nor read an arrest warrant and that he had not seen defendant at any time prior to the day of the arrest.

The State next called investigator Thomas Spanos who testified that on March 6, 1980, he talked to Roberta McColm in her apartment which was located in the 2900 block of North Hamlin Street. Also present were the burglary victims, Martha Latka, and her daughter. Spanos stated that McColm admitted that she had received some of Latka’s property from defendant. McColm then showed Spanos a strobe light which Latka acknowledged was hers.

Following defendant’s objection to a question to Spanos about his further investigation of this case, a side-bar conversation ensued where the State explained that it sought to prove that a warrant had been issued for defendant’s arrest. Defense counsel stressed that the arrest was improper because he had never seen such document and if one existed defendant should have been given a copy. The State countered that although the arresting officer did not have the warrant with him, one had in fact been issued on March 20, 1980, for the burglary which occurred on March 3. The State offered to stipulate that defendant was not shown the warrant, but defense counsel interrupted and said he intended to show that there was no probable cause for the arrest in the first place.

Still testifying for the State, Spanos said that during his investigation of the burglary he spoke with Wesley Frauen on March 6, 1980. Frauen had not been placed under arrest but was brought to the station to be questioned. Frauen stated that on March 3 he rented his car to defendant and Moutrey for $25. Spanos testified further that Latka’s neighbor had informed her that a vehicle (which matched the one that defendant and Moutrey had rented) was parked behind Latka’s house and that someone got out of the car and went into the yard. Another neighbor told Latka that she recognized the car and knew who owned it. The owner turned out to be Wesley Frauen.

Testifying further, Spanos stated that he conferred with State’s Attorneys and later secured a warrant for defendant’s arrest.

Spanos was then impeached on cross-examination when he admitted that he had testified at defendant’s preliminary hearing that he was the one who arrested defendant but that he had also testified before the court in the instant matter that another officer had in fact arrested defendant. After eliciting further testimony from Spanos that neither Frauen’s nor defendant’s brother’s statements were the sole basis for the investigation of this case, defendant rested.

Defendant then argued that the testimony of Officers Gillespie and Spanos revealed a discrepancy as to who arrested defendant and that a question remained as to why Gillespie had failed to obtain a copy of the warrant. Defendant urged that this arrest was unlawful because he was forced to rely on Gillespie’s “word of mouth” that a warrant existed and because the State failed to show how Gillespie knew, other than by a radio call, that a warrant had been issued. The State countered that it would rely on the court’s ability “to apply the law to the facts.”

Denying defendant’s motion to quash his arrest, the court reasoned that Gillespie’s testimony that he received radio information that a warrant existed and that he was the officer who physically took defendant into custody was unrefuted. Moreover, the court ruled, case law is replete with authority that while an arresting officer must have reasonable grounds to believe that a warrant existed, he need not have the warrant itself in his possession. Also, probable cause to arrest was properly based on the statements of Wesley Frauen, defendant’s brother, the observations of the burglary victim’s neighbors and the officer’s view of the stolen strobe light which Latka identified and which Roberta McColm said defendant gave to her.

Concerning Spanos’ testimony that he was the one who arrested defendant, the court explained that Gillespie brought defendant to the police station and that shortly thereafter Spanos spoke with defendant. Whether Spanos believed he was placing defendant under arrest or not was unimportant, the court reasoned, since the arrest was made when defendant was taken into custody by an officer who had reasonable grounds to believe that a warrant existed.

Defendant’s motion to suppress his post-arrest statements was addressed next. Officer Gillespie testified for the State that following the arrest he informed defendant of his Miranda rights and that defendant responded that he understood them. Defendant was then taken to the fourteenth district police station and placed in a lockup cell.

On cross-examination Gillespie reiterated the above facts and further stated that he did not know whether defendant was subsequently interrogated at the police station.

Detective Daniel Kepp next testified for the State that he and Detective Baraniak were present when Spanos showed defendant a waiver of rights form. Kepp said that Spanos asked defendant a series of questions which he (Spanos) typed as well as the answers defendant provided. Upon completion, defendant read the statement, made corrections and signed his name. Testifying further, Kepp stated that defendant was not promised leniency nor was he told that if he cooperated the police would help to get his bail lowered and that he would be given probation.

Under cross-examination Kepp stated that the question and answer session with Spanos proceeded uninterruptedly and that four people were present: defendant, Kepp and Detectives Spanos and Baraniak.

The State next called Spanos who testified that prior to questioning he informed defendant of his Miranda rights, that defendant acknowledged that he understood them, signed a rights waiver form and agreed to give a written statement. Detectives Baraniak and Kepp were present but did not ask any questions. After giving a statement, defendant signed it in Spanos’ presence. Shortly thereafter defendant’s father arrived.

Cross-examination of Spanos disclosed that defendant was interrogated for approximately one hour. At the close of Spanos’ testimony the court received the State’s exhibit of defendant’s statement into evidence.

In rebuttal, defendant examined his brother, Walter Peter Pleshko, who testified that because Spanos threatened him with being charged as an accessory and said that Ms. Latka had threatened to have defendant murdered, he falsely told Spanos that defendant admitted to him that he (defendant) was involved in the burglary. After defendant was arrested he called his brother, who brought their father to the police station. Walter Peter Pleshko testified further that at the station Spanos said that defendant had been very cooperative and was not in trouble because he was so helpful and that he guaranteed that defendant would only receive a probationary sentence. Under cross-examination, Walter Peter Pleshko said that defendant had not admitted that he participated in the burglary although defendant had suggested that some of his friends may have been involved.

Defendant’s father, Walter Peter Pleshko, Sr., was then called to testify. He said that he visited defendant at the police station and that he spoke to Spanos who stated that defendant had been cooperative.

Defendant testified next. He stated that after he was placed in custody at the station for approximately IV2 hours Spanos introduced himself, took defendant to a room and told defendant that if he would cooperate he would not go to jail, that Spanos would help to get defendant released and would get his bond lowered. Defendant stated that he was cooperative, answered questions and gave a statement because he was afraid. He read only parts of his statement and said that Spanos made certain corrections which defendant initialed. Defendant also testified that he completely obeyed Spanos’ instructions, and was assured that he would only get a probationary sentence.

Under cross-examination defendant said that he admitted to Spanos that he knew, about the burglary and had truthfully answered Spanos’ questions. Defendant signed his statement after Spanos read it to him but did not bother to read it because he “already knew what it was.” Testifying further, defendant said that Spanos failed to in-elude in the statement that defendant answered his questions because of the promises of leniency that were made. Under redirect and recross-examination defendant testified that Spanos made certain promises before he informed defendant of his Miranda rights and that he failed to include all of defendant’s answers in the statement because Spanos said it “would be better for me [defendant].”

During closing arguments on defendant’s motion to suppress the State urged that the facts fail to support defendant’s contention that Spanos made promises to defendant before he signed his statement; rather, there was a great deal of clear and convincing evidence that defendant was involved in the burglary. The State then set forth its version of the facts beginning with defendant’s arrest and concluded ' that it had met its burden of proof that defendant’s statement was made freely and without coercion.

Defendant argued that Spanos’ promises were made prior to his statement and before any Miranda warnings were given and that they were a detective strategy to obtain incriminating evidence. Additionally, defendant contended, there was no physical evidence such as a radio dispatch sheet to corroborate Gillespie’s testimony that he received a message to arrest defendant. Moreover, defendant said, the police in this case resorted to indiscriminate tactics, trickery and undue influence to solve the burglary as quickly as possible. Defendant concluded that “[t]his is what they call good police work, which deprives people who are in the lower financial bracket, to fillup the jails, and being incarcerated by this type of police work.”

Defendant’s motion to suppress his statement was denied. The court concluded that defendant was advised of his Miranda rights following his arrest and that it was unlikely that after being in custody at the police station for approximately an hour and 45 minutes defendant’s resistance was shaken and he involuntarily gave a statement. Further, the court stated, although representation regarding defendant’s bail may have been made to him, defendant’s father testified that defendant told him at the police station that he was being cooperative. That testimony was fairly consistent with what the officers said and indicates that defendant’s statement was probably made prior to his father’s arrival and was not induced by anything other than an expectation on defendant’s part that his cooperation would be instrumental in his release.

The subsequent pretrial proceedings addressed codefendant Mou-trey’s written motion and defendant’s oral motion for severance, which were denied. The court ruled that because two trials would proceed simultaneously — a jury trial for defendant and a bench trial for Moutrey — no testimony concerning a confession or other statements allegedly made by Moutrey which implicated defendant could be elicited from the witness stand while the jury was in the courtroom. If Moutrey testified, however, the State would be permitted to question him about his confession.

The Trial

The trial in this matter commenced August 28, 1981. The State’s first witness, Martha Latka, testified that on March 3, 1980, at 6:15 a.m. she left her home to go to work and returned that evening at approximately 4:15 p.m. Upon entering, she saw that the dining room window was open and that the house was in disarray. Clothes were on top of dresser drawers, mattresses were overturned, her jewelry box was broken and gold jewelry and watches were missing along with two mink coats, a microwave oven, three televisions and a clock radio. She called the police and Spanos and his partner arrived. Three days later, Latka visited Roberta McColm’s home and noticed that McColm had a strobe light that Latka believed had been stolen from her daughter’s bedroom during the burglary. Later, in September 1980, Latka visited jewelry stores and recognized that her jewelry was being sold. Latka testified further that she had met defendant in 1979 when he came to her house to work on her daughter’s car.

Next, Roberta McColm testified that she had known defendant for approximately five years and that on March 3, 1980, at approximately 6 or 7 p.m. defendant and Moutrey came to her home carrying a noticeably large quantity of money. Moutrey had a strobe light which McColm recognized as the one that she had purchased as a Christmas present for Latka’s daughter.

Thomas Spanos testified that on March 3, 1980, during his followup investigation of the burglary he interviewed Latka, who was crying and was hysterical. In response to a telephone call from Latka on March 6, Spanos visited McColm who gave him the strobe light.

Spanos also testified that on August 6, 1980, defendant was being held at the police station and that approximately 11 p.m. he read defendant his Miranda rights. Immediately thereafter Spanos gave defendant a printed form containing his constitutional rights which defendant read and signed. Defendant then indicated his willingness to give a statement concerning the burglary. Officers Kepp and Bara-niak were present when the statement was made. Spanos then read into evidence defendant’s written statement verbatim in its entirety.

Testifying further, Spanos related that defendant admitted that he had discussed burglarizing the Latka home with Moutrey and Frauen. On cross-examination, Spanos denied telling defendant or any member of his family that defendant would receive probation and a lower bond for his cooperation. He also testified that defendant’s brother and father did not arrive at the police station until after defendant’s written statement had been completed. At the close of Spanos’ testimony, the State rested.

Prior to defendant's case in chief, the State moved to have defendant’s written statement admitted into evidence which defendant objected to on the grounds that the copy tendered to him did not have Spanos’ signature and would therefore violate the rules of discovery. Defendant’s motion was denied.

Next, defendant’s father testified that he spoke with Spanos at the police station and that Spanos told him that defendant was cooperative and helpful and that he would get a lower bail for defendant and would see that defendant received probation. Mr. Pleshko also testified that before defendant had completed his statement, Spanos said that if defendant did not cooperate he (Spanos) would “go after him on the charge.”

In rebuttal, the State called Spanos who stated that he had not made promises to defendant concerning probation nor did he tell defendant’s father that he would “go after” his son if he did not cooperate. Additionally, Spanos testified that his conversation with the Pleshko family had occurred after defendant completed his statement. Defendant then rested his case.

Following closing arguments the jury returned a guilty verdict for burglary and the court entered its judgment. This appeal followed.

Opinion

Defendant first contends that he was denied a fair trial by the court’s admission of his post-arrest statement which was read into evidence by Spanos under direct examination by the State. The. statement consisted of a series of questions and answers, the objectional portion of which is as follows:

“Question [Spanos]: Have you ever sold any stolen merchandise to Anthony Best?
Answer [Defendant]: I did, yes, umpteen million snow blowers, car stereos, power tools, [and] mechanic tools that were taken from people’s garages and cars.
* * *
Question: Have you ever broken in any house other than the Latka house with Moutrey and Frauen?
Answer: No.
Question: Earlier you stated you sold items to Tony Best that came from garages, is that correct?
Answer: Yes.
Question: How did you get these items from the garages in question?
Answer: Most of the time the door was open and other times we broke in.
Question: What areas did you commit these burglaries in?
Answer: Norridge. Up that way.
Question: Did Moutrey or Frown [Frauen] ever go to these garage burglaries with you?
Answer: Yes. Both of them.”

Additionally, defendant argues that by failing to object to the foregoing testimony which referred to other unrelated criminal activity, his counsel provided ineffective legal assistance and further, that the court’s failure to admonish the jury that the testimony was incompetent and not to be considered in determining defendant’s guilt or innocence deprived him of a fair trial. We disagree.

First, we cannot consider the court’s admission of the contested testimony under plain error principles because the record affirmatively shows overwhelming evidence that defendant was accountable for the criminal acts of his accomplices. (People v. Lindgren (1980), 79 Ill. 2d 129, 141, 402 N.E.2d 238.) For example, in an earlier portion of defendant’s statement which Spanos also read into evidence, defendant revealed that he had discussed burglarizing the Latka home with Moutrey and Frauen, that he and Moutrey sold the stolen items to jewelry stores and that defendant received $600 or $700 of the proceeds. Defendant’s damaging admissions, along with McColm’s testimony that defendant and Moutrey had a strobe light that she had previously given to Latka’s daughter and that neighbors spotted the car that defendant and Moutrey had rented parked behind Latka’s home is clear and convincing evidence of defendant’s involvement in the criminal scheme.

Also, defendant’s statement was admissible to show knowledge and common design in that he had participated in several garage burglaries and that he had knowledge of what Moutrey and Frauen would do with the information he gave them about the Latka home. (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489.) The statement further indicates that defendant provided important information with the motive of realizing a profit from the sale of the stolen merchandise. People v. Kirkpatrick (1979), 70 Ill. App. 3d 166, 174, 387 N.E.2d 1284.

Counsel’s failure to object to the questioned testimony can be considered a trial strategy. Counsel may have decided that the incriminating statement was not rendered any worse by the reference to other crimes and that rather than contest the contents of the statement counsel chose instead to focus on the method by which the statement was obtained. The record reveals that during Spanos’ cross-examination counsel repeatedly queried as to the authenticity of the signatures on the statement, in what room at the police station the statement was obtained and whether defendant gave the statement in response to promises that he would receive a low bail and a probationary sentence.

Additionally, we note that the court, sua sponte, excised the reference to other crimes in the statement before it was tendered to the jury and instructed that the reason for the blank spaces was irrelevant to its deliberation and should not be considered in reaching a verdict. Thus, we conclude that neither the admission of the statement nor counsel’s failure to object thereto deprived defendant of a fair trial.

Defendant next urges that he was prejudiced by his counsel’s unfamiliarity with arrest procedures in that he submitted a motion to quash the arrest which alleged that the arrest was illegal because the arresting officer did not have a warrant with him at the time. Counsel explained to the court that the proper way to effectuate a legal arrest “was to give him [defendant] a copy of the warrant so that he can examine it, so that he can go to an attorney and see if it is proper *** But, to merely say, we got a warrant for your arrest, and you are under arrest, but we can’t show you that warrant, to me, seems that that arrest in itself, should not be binding.”

In Illinois, the oft-cited standard of competence to determine whether counsel was incompetent is actual incompetence which caused such substantial prejudice to the defendant that the outcome of the trial was probably changed. (People v. Carlson (1980), 79 Ill. 2d 564, 584-85, 404 N.E.2d 233; People v. Goins (1981), 103 Ill. App. 3d 596, 600, 431 N.E.2d 1069.) Also, counsel’s competency must be measured by the totality of his conduct at trial. People v. Brownstein (1982), 105 Ill. App. 3d 459, 465, 434 N.E.2d 505.

Applying the above to the facts before us, our thorough review of the record reveals that although counsel erred in his contention that an arrest is invalid if the officer does not have a warrant with him, counsel demonstrated a vigorous and thorough defense from the inception to the conclusion of the trial. Counsel filed and argued timely pretrial motions and conducted a thorough cross-examination of each witness which resulted in Spanos’ impeachment. At the close of the State’s case counsel made a motion for a directed verdict and thereafter presented a valid closing argument. In our judgment, defendant’s charges of incompetence are unsupported by the record. The fact that counsel unsuccessfully argued a motion to quash the arrest is, by itself, an insufficient reason to judge that defendant was substantially prejudiced.

We next consider defendant’s contention that he was not proven guilty beyond a reasonable doubt. To sustain a conviction under accountability principles, the State must prove that defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense. This participation must have taken place either before or during the perpetration of the crime and must have been with a concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Grice (1980), 87 Ill. App. 3d 718, 724-25, 410 N.E.2d 209, cert, denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714; People v. Ware (1980), 82 Ill. App. 3d 297, 306, 402 N.E.2d 762.) Also, although mere presence at the scene of the crime or negative acquiescence in another’s actions is ordinarily insufficient to establish legal accountability for the acts of another, one may nonetheless be held to aid and abet without actively participating in the overt act. People v. Gray (1980), 87 Ill. App. 3d 142, 147, 408 N.E.2d 1150, cert, denied (1981), 450 U.S. 1032, 68 L. Ed. 2d 228, 101 S. Ct. 1745.

In the case at bar, defendant admitted that he had been involved in the planning of the burglary and that he, Moutrey and Frauen had discussed committing the burglary but that they had decided to put off “ripping her house off.” Defendant’s statement further revealed that he provided information about the Latka home after Moutrey and Frauen bragged about successful home burglaries elsewhere but when they told him that they were going to “get her house today” defendant told them that they were “crazy.” He waited for them at a nearby tavern and when they returned the car was completely filled with stolen merchandise. Later, at approximately 8:30 or 9 p.m., defendant and Moutrey proceeded to sell the stolen merchandise to jewelers. Defendant stated that Moutrey said, “You were right about the house,” and gave defendant $600 or $700 cash.

Although defendant may not have physically participated in the burglary, by his own admission he specifically and intentionally planned to commit the offense, met with his accomplices immediately afterward, went with Moutrey to sell the stolen goods and shared in the proceeds. Moreover, he failed to neutralize the effect of his assist-anee by either notifying the police or by any other act. A person may not be accountable for the conduct of another if before the commission of the offense he terminates his effort to promote or facilitate such commission and does one of the following: either wholly deprives his prior efforts of effectiveness in such commission or gives timely warning to the proper law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c); People v. Balls (1981), 95 Ill. App. 3d 70, 75, 419 N.E.2d 571.) In the instant case, defendant did none of the above. We believe that the evidence presented was sufficient to show that (1) defendant solicited, aided and abetted Moutrey and Frauen in planning the burglary; (2) that his participation took place before the commission of the offense, and (3) that defendant had the concurrent, specific intent to promote or facilitate the burglary. (People v. Bell (1981), 96 Ill. App. 3d 857, 864, 421 N.E.2d 1351.) Accordingly, we find no reasonable doubt of defendant’s guilt.

Defendant’s fourth contention on appeal can be addressed summarily. Defendant argues that during rebuttal closing argument, the prosecutor improperly commented on defendant’s failure to testify in his own behalf. Defendant fails to recognize, however, that during his closing argument he offered reasons as to why he did not testify and thus invited the prosecutor’s remarks. Counsel explained that:

“You’re also probably — I took the liberty of not permitting Joe [defendant] to testify, and I’m sure that the Court in its instruction will tell you that you're not to make an inference one way or the other. However, rather than repeat and rehash and say the same thing over and over again, he pleaded not guilty. What more can a man do than that?”

The prosecutor responded in rebuttal argument in the following manner:

“Counsel also says that Joseph Pleshko did not testify because it would have just been repetitious of what you heard. Well, I submit to you, ladies and gentlemen, that is not the reason why Joseph Pleshko did not testify in this case because he’s going to repeat what his father said. That very small thing occurred five months after the incident, he would have been repetitious of, that he’s got nothing else to say.”

Defense counsel may not invoke a response from the prosecutor in closing argument and then claim that defendant was thereby prejudiced. (People v. Smith (1982), 111 App. 3d 895, 907, 444 N.E.2d 801.) Here, counsel brought defendant’s failure to testify to the jury’s attention and sought to explain it away. Clearly invited, the prosecutor simply and briefly rebutted counsel’s explanation. Defendant’s argument on this issue is therefore without merit.

The final issue presented for our consideration is that the trial court erred by refusing defendant’s jury instruction on proof because the evidence presented was solely circumstantial. Defendant argues that for this reason, the second paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981) should have been given. We disagree.

IPI Criminal No. 3.02 reads as follows:

“[1] Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [(the) (a)] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
[2] You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.”

The committee notes to this instruction provide that the second paragraph should be given only when the proof of guilt is entirely circumstantial. In the instant case, the trial court properly observed that there was direct evidence of defendant’s guilt and, therefore, paragraph two would be deleted. We agree. The direct evidence here consists of defendant’s written statement wherein he admitted that he, Moutrey and Frauen had planned to burglarize the Latka home. Such an admission has been held to constitute direct evidence of guilt. (People v. Panus (1979), 76 Ill. 2d 263, 273, 391 N.E.2d 376.) We therefore find no error in this regard.

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

Affirmed.

LORENZ and MEJDA, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MANGAL THAKKAR, Plaintiff-Appellant, v. WILSON ENTERPRISES, INC., Defendant-Appellee.
    First District (5th Division)
    No. 82—1686
    Opinion filed December 23, 1983.
    Roger Baldwin Foundation of ACLU, Inc., of Chicago (Roslyn C. Lieb, Harvey Grossman, and Susan Bandes, of counsel), for appellant.
    Lawrence I. Kipperman, James S. Whitehead, and David F. Johnson, all of Sidley & Austin, of Chicago, for appellee.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This is an appeal from the dismissal of an action brought by plaintiff in the circuit court of Cook County against defendant alleging employment discrimination on the basis of plaintiff’s national origin in violation of the Illinois Bill of Rights, article I, section 17 of the Illinois State Constitution. Ill. Const. 19Í70, art. I, sec. 17.

Plaintiff Mangal Thakkar is an East Indian who has resided in the United States since 1972. In 1977 he was hired by defendant Wilson Enterprises, Inc., as a general carpenter. Following a job-related injury in February 1978, which resulted in an 11-week absence from work and a change in job assignment when he returned, plaintiff’s salary was decreased from $7.93 to $6.55 per hour. This amount was increased to $7.93 in October 1978 but a year later, in November 1979, his employment was terminated. Plaintiff filed a complaint of discrimination in the circuit court on November 3, 1980, which was dismissed pursuant to defendant’s motion.

The court thereafter entered an order which stated that plaintiff had failed to comply with the statutory provisions of the Fair Employment Practices Act, that the Human Rights Act and the Fair Employment Practices Act constitute reasonable exemptions to section 17 of article 1 of the State Constitution and that the language of section 17 which refers to the “hiring and promotion practices of any employer” includes discharges and terminations of employment. This appeal followed the court’s denial of plaintiff’s petition to reconsider its order of dismissal.

Opinion

The controlling issue for our consideration is whether an aggrieved party may directly sue for discrimination in employment under article I, section 17 of the 1970 Illinois State Constitution without first exhausting the administrative remedies set forth in the Illinois Human Rights Act (HRA) (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.). Section 17 states that:

“All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.
These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.” Ill. Const. 1970, art. I, sec. 17.

Plaintiff first contends that neither the Fair Employment Practices Act nor its successor, the Human Rights Act, comprise the “reasonable exemptions” referred to in section 17 since that section was enacted in 1970, nine years after the FEPA (1961). Thus, according to plaintiff, section 17 constitutes a second or alternative avenue to redress an employment discrimination dispute. We disagree.

The question of whether an aggrieved party may bring a direct action for violation of a right protected by the FEPA was decided in Illinois on two occasions in 1980, the same year that plaintiff initiated the proceedings before use. In Manuel v. International Harvester Co. (N.D. Ill. 1980), 502 F. Supp. 45, the district court set forth the enforcement scheme of the FEPA and explained that any claim within the coverage of that act must be filed with the Fair Employment Practices Commission. (502 F. Supp. 45, 49.) The court further stated that following a hearing and recommended order filed by a hearing examiner, the Commission on review adopts all orders not contrary to the manifest weight of the evidence. Thereafter, either an employer or employee may obtain judicial review of the Commission’s findings. The Commission may also sue in State court to enforce its order. 502 F. Supp. 45, 49.

The court concluded that the employee could not maintain a direct action against his former employer as it was the prerogative of the Fair Employment Practices Commission to determine whether a violation exists and to issue a complaint. 502 F. Supp. 45, 49.

The second case addressing this question was decided in November 1980, approximately four months following the Manuel decision. In Beane v. Millers Mutual Insurance Association (1980), 90 Ill. App. 3d 258, 412 N.E.2d 1124, the court ruled that because the appellant never presented his claim to the Fair Employment Practices Commission he had failed to exhaust his administrative remedies and could not bypass the statutory procedures of the Fair Employment Practices Act. 90 Ill. App. 3d 258, 261.

Although the plaintiffs in the foregoing cases did not contend, as plaintiff does here, that the FEPA provided an alternative vehicle to pursue a civil rights action, nonetheless the charge was made that a direct cause of action could be filed by an aggrieved employee and that the act’s statutory procedures could be bypassed. The courts in both cases ruled to the contrary. We are in full accord with these decisions and believe that a similar result is warranted in the case at bar.

A review of the detailed legislative scheme of the Human Rights Act persuasively suggests that the General Assembly intended for it to be the preemptive vehicle for the resolution of employment discrimination cases in Illinois. Indeed, the act itself states that “[ejxcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111(D).) Moreover, the comprehensive remedial procedures of the act indicate the legislature’s intent that the constitutional rights set forth in section 17 be harmonized with the act, which clearly states in its initial declaration of policy that “It is the public policy of this State: *** To secure and guarantee the rights established by Sections 17, 18 and 19 of Article I of the Illinois Constitution of 1970.” Ill. Rev. Stat. 1981, ch. 68, par. 1-102(C).

Consistent with this analysis, it follows that the “reasonable exemptions relative to these rights” expressed in section 17 are also found at least in part, and as far as the present case is concerned, in the Illinois Human Rights Act. For example, article 2 of the act concerns employment; section 2 — 104 lists the exemptions thereunder. (A decision which specifically addressed the issue of exemptions under section 17 is Davis v. Attic Club (1977), 56 Ill. App. 3d 58, 70, 371 N.E.2d 903, in which the court held that a voluntary association such as a private club was exempt from section 17’s prohibition against discrimination in the sale or rental of property. The court relied heavily on the Liquor Control Act for this exemption. Ill. Rev. Stat. 1977, ch. 43, par. 94 et seq.)

A court of review has the duty to construe a State constitution so as to effectuate the intent of its drafters (see People ex rel. McDavid v. Barrett (1939), 370 Ill. 478, 480, 19 N.E.2d 356), and when faced with a constitutional provision whose meaning is thought to be. uncertain, the accepted practice for ascertaining such intent is to consult the debates of the relevant constitutional convention. People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 527, 150 N.E.2d 168, cert, denied (1958), 358 U.S. 828, 3 L. Ed. 2d 67, 79 S. Ct. 46.

Our examination of the debates of the Sixth Illinois Constitutional Convention of 1969-1970 convinces us that the drafters intended that the “reasonable exemptions” referred to in section 17 would comprise statutory provisions enacted by the State legislature. In explaining the language of section 17, the Bill of Rights Committee (6 Record of Proceedings, Sixth Illinois Constitutional Convention 68) made the following statement:

“The Committee concluded that the right to freedom from discrimination should be subject to a legislative power to establish reasonable exemptions. The subject of discrimination in employment or housing on the basis of race, color, creed, national ancestry or sex has many different facets. This is evident from the numerous exceptions written into state and federal legislation forbidding discrimination in these areas.
* * *
Appropriate exceptions cannot readily be treated in a constitutional provision, but they can be provided by legislation. Consequently, the new section authorizes the General Assembly to ‘establish reasonable exemptions’ from the rights created in the section.
Since the right is explicitly made ‘enforceable without action by the General Assembly,’ an aggrieved person.could have recourse to existing judicial or legislative remedies for a violation of the right. The General Assembly is also authorized to prescribe additional remedies.” (Emphasis added.)

Based on our interpretation of the foregoing statements along with the cases previously cited on this issue, we conclude that the Fair Employment Practices Act and its successor, the Human Rights Act, are “reasonable exemptions” as expressed in section 17.

Addressing plaintiff’s second contention, we further conclude that the directives of the Human Rights Commission embodied in the act along with the act’s extensive and detailed procedural scheme constitute “additional remedies” for the resolution of employment discrimination cases in this State.

Plaintiff’s final contention on appeal is that the FEPA and the HRA are independent remedies for violations of the rights guaranteed by section 17 and that plaintiff’s failure to comply with the provisions of those statutes cannot be a bar to a direct cause of action. Again, we disagree.

As we have previously explained, the statutory scheme of the HRA, which serves to protect and enforce the rights of section 17, effectively bars plaintiff from bringing a direct cause of action until the administrative procedures and remedies as set forth in the act have been exhausted.

We further note that a litigant under Federal law who seeks to redress an alleged violation of a civil right must also first exhaust all available administrative remedies prior to bringing a cause of action in the district court. (McKart v. United States (1969), 395 U.S. 185, 23 L. Ed. 2d 194, 89 S. Ct. 1657; Patterson v. General Motors Corp. (7th Cir. 1980), 631 F.2d 476, cert, denied (1981), 451 U.S. 914, 68 L. Ed. 2d 304, 101 S. Ct. 1988.) Several policy reasons have been articulated to support this exhaustion requirement and are equally applicable to the facts before us: (1) the requirement avoids interruption of the administrative process; (2) it allows the involved agency to develop the necessary factual background upon which to base a decision; (3) it allows the agency to exercise its discretion or apply its particular expertise; (4) the exhaustion requirement serves to improve the efficiency of the administrative process; (5) it serves to conserve scarce judicial resources; (6) it gives the agency an opportunity to discovery and correct its own errors; and (7) it avoids the possibility that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures. McKart v. United States (1969), 395 U.S. 185, 193-95, 23 L. Ed. 2d 194, 203-04, 89 S. Ct. 1657, 1662-63.

The limitations, administrative procedures and remedies of the Human Rights Act and, of course, its predecessor, the Fair Employment Practices Act, are reasonable and were enacted with proper authority. In our judgment, relaxed requirements are neither necessary nor appropriate at this time. We therefore refuse to subvert the clearly articulated procedural scheme of the act. Indeed, the legislature’s intent that the Act stand as the exclusive mechanism for the enforcement of rights guaranteed by section 17 is unambiguously stated in the title of the act, which says that its purpose is to prevent unlawful discrimination in employment “by authorizing the creation of a Department of Human Rights to enforce, and a Human Rights Commission to adjudicate, allegations of unlawful discrimination ***.” Ill. Rev. Stat. 1981, ch. 68, at 3187.

We turn now to an issue which defendant presented below in its motion to dismiss and which is raised on appeal for our consideration. Defendant contends that section 17’s prohibition against discrimination in “the hiring and promotion practices of any employer” does not include termination and discharge and that plaintiff’s complaint is therefore insufficient because it does not allege that defendant engaged in discriminatory hiring or promotion practices.

On this point we concur with the court in Greenholdt v. Illinois Bell Telephone Co. (1982), 107 Ill. App. 3d 748, 438 N.E.2d 245, that the plain meaning of section 17, along with the insight provided by the proceedings of the Bill of Rights Committee, indicates that that section extends only to hiring and promotion as opposed to all ■ employment practices. (107 Ill. App. 3d 748, 753.) In view of the Greenholdt decision, we disagree with the trial court’s ruling on this issue in the instant case which rejected defendant’s argument. We conclude that our holding provides an additional reason for the dismissal of plaintiff’s complaint. The trial court’s final judgment in defendant’s favor will therefore be affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      Plaintiff was a permanent resident when his employment began in February 1977.

      When plaintiff was discharged on November 2, 1979, the Fair Employment Practices Act (FEPA) was in effect. (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.) This act was superseded by the Illinois Human Rights Act which became effective on July 1, 1980. (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.) This successor act is a consolidation of numerous antidiscrimination statutes. Our holding today therefore applies to the FEPA as well as the HRA.

      PIaintiff argues in his reply brief that his cause of action is solely based on a violation of section 17 and not the FEPA or HRA and that any attempt to address the issues raised in his appeal based on these acts would be in error. We cannot agree since, as explained in this opinion, the resolution of an alleged section 17 violation in employment by an employer who is not exempt from the provisions of the HRA requires the exhaustion of the administrative remedies set forth in that act.


author: JUSTICE CAMPBELL

text:
    FRANK MORAN, Plaintiff-Appellant, v. ILLINOIS CIVIL SERVICE COMMISSION et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—211
    Opinion filed December 27, 1983.

      Cornfield and Feldman, of Chicago, for appellant.
    Lawrence X. Pusateri and John N. Scholnick, both of Chicago (Peterson, Ross, Schloerb & Seidel, of counsel), for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Frank Moran, appeals from the decision of the circuit court of Cook County affirming the finding of defendant, Civil Service Commission (Commission), that defendant, Department of Corrections (Department), had cause to discharge plaintiff from his position as correctional captain at Stateville Correctional Center (Stateville).

On appeal plaintiff raises the following issues: (1) whether plaintiff’s rights under Rule 6(e) of the Federal Rules of Criminal Procedure were violated; (2) whether State courts have jurisdiction to resolve issues concerning false testimony before a Federal grand jury; (3) whether a witness can be discharged from employment for his false testimony before a Federal grand jury; (4) whether there was “cause” for dismissal of plaintiff.

Plaintiff was charged by the Department with violating Department of Corrections Adult Administrative Regulation No. 207, which reads: “To ensure that the conduct of each employee of an Adult Division institution or facility will not bring discredit upon himself or the agency.” The Director of the Department determined that plaintiff violated the regulation by giving false testimony under oath before a Federal grand jury. Following an administrative hearing, the Commission’s hearing officer found that plaintiff’s discharge was warranted. The Commission thereafter concurred in and adopted the recommendations of the hearing officer. Plaintiff filed a complaint in the circuit court seeking review of the Commission’s decision. The circuit court affirmed.

The record discloses that on May 10, 1979, plaintiff testified before a Federal grand jury in regards to inmate beatings which occurred at Stateville. At the time of the beatings plaintiff was a correctional lieutenant. Subsequent to his grand jury testimony, plaintiff was granted immunity from prosecution and testified as a State witness at the criminal trial which arose from the grand jury investigation.

' At the criminal trial on December 11, 1980, plaintiff testified as follows:

“Ms. Parkhurst [Assistant United States Attorney]: Mr. Moran, when you testified before the grand jury did you make any statements different there than you have testified to today?
Mr. Moran [Plaintiff]: Yes, I did.
Ms. Parkhurst: What did you say there that you said differently here?
Mr. Moran: When I testified before the grand jury I omitted the fact that I had entered the shower room in cell house B East.
Ms. Parkhurst: What is your understanding with respect to your status regarding your grand jury testimony?
* * *
Mr. Moran: There is a possibility I may be prosecuted for perjury for my false testimony in front of the grand jury and also that that information will re [sic] relayed to the Illinois
[Department] of Corrections for their decision.
Ms. Parkhurst: For their decision as to what?
Mr. Moran: My job status.
* * *
Mr. Rooney [Defense Attorney]: Did you not raise your right hand and promise to tell nothing but the truth to the [grand jury]?
Mr. Moran: Yes, I did.
Mr. Rooney: Now you say you lied to them?
Mr. Moran: That is correct.”

The record further discloses that on June 1, 1981, the United States Attorney’s Office sent a letter to the Department informing the Department that plaintiff had testified at the trial of five former Stateville guards who were convicted of civil rights violations stemming from their beatings of three Stateville inmates on January 1, 1979. The letter further stated that plaintiff had testified under a grant of immunity, and that as part of the immunity agreement, plaintiff was advised that the Department would be informed of his failure to cooperate. Along with the letter, the United States Attorney’s office sent the Department a copy of the immunity agreement between plaintiff and the United States Attorney’s office. The immunity agreement stated that plaintiff had admitted that he had testified falsely before the Federal grand jury. The agreement specifically provided: “We wish to advise you that we intend to notify the Illinois Department of Corrections of your concealment of information for whatever action they deem appropriate.” Plaintiff’s signature appeared at the bottom of the immunity agreement.

At the hearing before the Commission on October 6 and 7, 1981, Michael O’Leary, Assistant Warden of Operations at Stateville, testified that plaintiff’s testimony before the grand jury would bring discredit upon the Department. O’Leary added that because plaintiff was a supervisor, his command for respect from personnel, and his ability to enforce his decisions, would be greatly affected. Plaintiff’s ability to submit honest and accurate daily reports would also be questioned. In O’Leary’s opinion, plaintiff violated Regulation 207 by his act of testifying falsely before the grand jury. O’Leary’s testimony was corroborated at the hearing by Darryl Cobb, Chief of Security at Sta-teville, and by Robert De Robertis, Chief Administrator at Stateville. De Robertis further added that plaintiff’s conduct affected his credibility and was detrimental to the Department.

Plaintiff was called as an adverse witness but refused to answer any questions surrounding his testimony at the criminal trial on the basis of his fifth amendment privilege against self-incrimination. Plaintiff was then advised by the hearing officer that his refusal to testify would be considered in determining whether or not the charges for discharge had been proven.

I

Plaintiff first contends that his rights under Rule 6(e) of the Federal Rules of Criminal Procedure (Fed. R. Crim. P. 6(e)) were violated by the disclosure of plaintiff’s grand jury testimony to the Department. Rule 6(e) provides in pertinent part that:

“Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a[n] *** attorney *** may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant***.”

Plaintiff claims that Rule 6(e) prohibits a United States Attorney from sharing information with State government attorneys. (In re Ho-lovachka (7th Cir. 1963), 317 F.2d 834; United States v. Downey (S.D. Ill. 1961), 195 F. Supp. 581.) Plaintiff claims further that there was no court permission for divulging the grand jury testimony and therefore the testimony is inadmissible against plaintiff.

Defendants argue, however, that direct evidence of plaintiff’s false testimony before the grand jury was contained in the transcript of plaintiff’s testimony in the subsequent criminal trial. The United States Attorney’s correspondence was sent to the Department following the criminal trial, and plaintiff testified that he was aware that his admission of lying would be communicated to the department. Furthermore, at the criminal trial, plaintiff’s immunity agreement with the United States Attorney, which stated unequivocally that plaintiff lied before the grand jury, was read into the record. Plaintiff’s grand jury testimony was thereby made a matter of public record of which plaintiff cannot complain. See Craig v. Harney (1947), 331 U.S. 367, 91 L. Ed. 1546, 67 S. Ct. 1249.

The correspondence complained of reads in part: The letter was sent and received by the Department subsequent to plaintiffs testimony at the criminal trial. We agree with defendants that plaintiffs false testimony before the grand jury became a matter of public record and therefore plaintiff cannot claim that his rights under Rule 6(e) were violated by the United States Attorney’s correspondence to the Department. (See Giampa v. Illinois Civil Service Com. (1980), 89 Ill. App. 3d 606, 411 N.E.2d 1110.) We therefore need not reach the issue as to whether or not plaintiff’s rights under Rule 6(e) were violated by the United States Attorney’s communication to the Department.

“The immunity was granted after Mr. Moran disclosed information which he had previously withheld concerning the events of January 1, 1979. Unfortunately, Mr. Moran had failed to tell the Federal Grand Jury what he knew and in fact had perjured himself before the Federal Grand Jury.”

II

Plaintiff also argues that the State of Illinois is preempted from making a finding that perjury occurred before a United States grand jury. Plaintiff claims that because Congress has reserved the adjudication and punishment for the offense of perjury before a Federal grand jury exclusively to the Federal district courts, the State cannot punish plaintiff for such alleged false testimony. (Parks v. Department of Mental Health & Developmental Disabilities (1982), 110 Ill. App. 3d 184, 441 N.E.2d 1209.) The defendants counter by asserting that plaintiff’s discharge proceeding is not a criminal action for perjury. Defendants claim that the focus of the present action is to determine plaintiff’s suitability for continued employment as a correctional captain. We agree.

Initially, we note that the purpose of the present proceedings is to determine whether or not plaintiff violated Regulation 207. A civil service proceeding is not “intended to redress criminal wrongs by imposing sentences of imprisonment, other types of detention or commitment, or fines.” (In re Daley (7th Cir. 1977), 549 F.2d 469, 475.) Defendants have not attempted to establish that plaintiff committed perjury before the grand jury. The record discloses that plaintiff admitted at a public trial that he had testified falsely before the grand jury. Defendants seek to discharge plaintiff for bringing discredit upon himself as a correctional captain, and upon the Department. Plaintiff has not shown that defendants are, in any manner, invading the province of the Federal district courts in discharging plaintiff for violating Regulation 207. Therefore, we cannot agree with plaintiff that the State is preempted from adjudicating this matter.

III

Plaintiff’s next contention is that he is immune from all liability, except perjury, for his false testimony before the grand jury. Plaintiff argues that a grand jury witness is immune from civil liability for his testimony (Liddell v. Smith (7th Cir. 1965), 345 F.2d 491), and that the only liability for a falsely swearing witness is in a criminal action for perjury, therefore, he could not be discharged for his conduct.

Defendant’s argue, however, that the witness immunity rule applies only to a witness’ civil liability for damages caused as a result of his perjured testimony. (Briscoe v. LaHue (1983), 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108.) Defendants claim that the rule has not been extended beyond actions for damages and therefore is not applicable to a discharge proceeding. Defendants assert that the United States Supreme Court has specifically carved out an exception from the immunity rule for administrative proceedings which affect the witness’ employment. Defendants rely on Imbler v. Pachtman (1976), 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984) to support their argument. In Imbler, a prosecutor who was otherwise immune from liability for damages resulting from his official conduct, was nevertheless found to be amenable to professional discipline by his peers for his conduct. This principle with respect to prosecutors has been held to apply to witnesses as well. Briscoe v. LaHue (1983), 460 U.S. 325, 75 L. Ed. 2d 96,103 S. Ct. 1108.

Plaintiff was charged with violating Regulation 207 by testifying falsely before a Federal grand jury and thereby bringing discredit upon himself and the Department. There was ample evidence to support the Department’s assertion that plaintiff’s conduct adversely affected his position as a correctional captain, and the Department as a whole. We reject outright plaintiff’s contention that his conduct of testifying falsely before the grand jury should be condoned where plaintiff’s conduct directly affected his employment.

IV

Plaintiff’s final contention is that no cause existed for plaintiff’s discharge. Plaintiff argues that the State failed to satisfy the burden of proving all of the elements of perjury by clear and convincing evidence. (Drezner v. Civil Service Com. (1947), 398 Ill. 219, 75 N.E.2d 303; Shallow v. Police Board (1981), 95 Ill. App. 3d 901, 420 N.E.2d 618.) Plaintiff also argues that the record is barren of any facts supporting a conclusion that plaintiff’s conduct brought disrepute upon the Department.

On administrative review, this court must initially ascertain whether the findings of the agency are supported by substantial evidence in the record and not contrary to the manifest weight of the evidence. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) Findings of fact by an administrative agency are prima facie true and correct. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110.) “In order to conclude that a particular finding is against the manifest weight of the evidence, the reviewing court must be satisfied that an opposite conclusion is clearly evident.” Robinson v. Cook County Police & Corrections Merit Board (1982), 107 Ill. App. 3d 978, 983, 436 N.E.2d 617, 621.

In this case, the evidence clearly establishes that plaintiff testified falsely before the Federal grand jury. The May 26, 1981, letter from the United States Attorney’s office stated that plaintiff had lied while testifying under oath. The October 9, 1980, immunity agreement, which was signed by plaintiff, stated that plaintiff had lied. In fact, plaintiff admitted at the criminal trial that he had lied before the grand jury. Therefore, the Commission’s finding that plaintiff lied before the grand jury is supported by the record and not contrary to the manifest weight of the evidence.

The reviewing court must also determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause existed for discharging plaintiff. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885.) Section 11 of the Personnel Code prohibits discharge of employees except “for cause.” (Ill. Rev. Stat. 1981, ch. 127, par. 63M11.) The Illinois Supreme Court has defined “cause” as:

“ '*** some substantial shortcoming which renders [the employee’s] continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place.’ ” (Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, 410, 438 N.E.2d 147, 150.)

The agency’s decision as to whether cause for discharge exists “will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service.” Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 552, 426 N.E.2d 885, 887; see also Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, 438 N.E.2d 147.

The Commission, upon a full review of the discharge hearing, found that as a captain, plaintiff was “expected to provide an example to everyone at the facility *** [and] [t]he fact that misrepresentation occurred *** could raise a credibility issue ***.” The Commission further found that “[i]t was extremely significant and eventually detrimental to the Department” that plaintiff failed to disclose the shower room incident since the Department was unaware of the incident until plaintiff’s testimony in the criminal trial. The Commission’s findings also state, “[plaintiff] showed that he cannot be relied on to report incidents as required by his job duties.” The Commission finally found that plaintiff’s position as correctional captain was “highly sensitive” and required that plaintiff be “above reproach in being an example.” In light of all the surrounding circumstances, and the fact that plaintiff’s conduct was common knowledge at the Department, the Commission concluded that plaintiff’s “behavior constituted unsuitability for [plaintiff’s] position within the [Department].” From our review of the record, we cannot say that the Commission’s decision to discharge plaintiff was arbitrary, unreasonable, or unrelated to the requirements of service. Accordingly, we affirm the order of the circuit court which upheld that Commission’s order of discharge.

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE PERLIN

text:
    BEST COIN-OP, INC., Plaintiff-Appellee, v. ANTHONY CLEMENTI et al., Defendants-Appellants.
    First District (2nd Division)
    No. 82—2439
    Opinion filed December 27, 1983.

      Edward'T. Graney and Robert Carrillo, both of Chicago, for appellants.
    James B. O’Brien & Associates, Ltd., of Chicago, for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Anthony Clementi and William McCarthy (defendants) appeal from the February 5, 1982, order of the circuit court of Cook County granting to Best Coin-Op, Inc. (Best), judgment on the pleadings in the amount of $3,484.96 in Best’s action to confirm an arbitrator’s award pursuant to section 11 of the Uniform Arbitration Act (Act). Ill. Rev. Stat. 1979, ch. 10, par. Ill.

The dispositive issue on appeal is whether defendants’ alleged failure timely to assert any of the statutory grounds for vacatur of the arbitrator’s award enumerated in section 12 (El. Rev. Stat. 1979, ch. 10, par. 112) of the Act waived their right to challenge that award.

On July 1, 1977, Best entered into a lease agreement with Frank Stape Builders, developer and original owner of a six-unit apartment building at 8647 Forster (Forster property) in Chicago. Under the lease which was to run from June 1, 1977, to June 30, 1984, Best was to equip and maintain a laundry room in the building, and lessor was to receive “25% of all gross revenue” resulting from the use of the laundry equipment by the building’s tenants. The lease, a copy of which is present in the record, contains the following paragraphs pertinent to the instant case:

“13. In the event of any dispute or controversy arising out of the operation or alleged breach of this Lease Agreement such dispute or controversy shall be submitted to and be governed by the rules of the American Arbitration Association, and the decision rendered thereunder, whether legal or equitable in nature, shall be final and binding upon the parties. No litigation shall be instituted between the parties hereto except to enforce the award or order of the arbitrators.
* * *
15. This Lease Agreement shall be binding upon and shall inure to the benefit of the Lessor and the Lessee and their respective successors and assigns, including any future owners, beneficiaries or lessees of the Building, it being the intention of the parties that the interest granted to Lessee herein shall run with the land and Building.” (Emphasis added.)

The Forester property was sold by Frank Stape Builders to James Weitzema, and in August 1979 Weitzema sold to defendants his beneficial interest in the property.

Defendant Clementi in his testimony acknowledged he was aware of the machines in the building prior to the consummation of defendants’ purchase of the building on August 9, 1979. Defendants contend that Weitzema initially “represented *** that there was no lease between him and [Best] and that the machines would be removed if the defendants so desired.” Defendants later learned of Best’s claim that its lease remained effective. On March 30, 1980, without resolving the lease dispute, Clementi disconnected the machines and notified Best to remove them. Best accordingly removed its equipment and on July 16, 1980, instituted action against defendants seeking damages for an alleged breach of the lease. On April 1, 1981, defendants moved to dismiss the action on the ground that the lease contained an arbitration clause. Defendants’ motion was granted and Best was directed by the trial court to pursue arbitration “if he so desire[d].”

Best accordingly instituted arbitration proceedings, an arbitrator was designated, and on June 26, 1981, an arbitration hearing was held. At the outset of the arbitration proceedings, defendants’ counsel challenged the validity of the lease between Best and Frank Stape Builders; the effect, if any, such lease had on defendants; and whether the lease violated the statute of frauds. Counsel for Best argued that under paragraph 15 of the lease, subsequent purchasers of the property are bound by the lease. Upon completion of testimony, the arbitrator found that a valid and enforceable lease existed between Best and the “ownership of the property located at 8647 Forster in Chicago,” and that Clementi “knowingly disconnected the machines that were in the property.” These oral findings were incorporated into the written findings issued by the arbitrator and received by the parties on July 10, 1981. Additional findings by the arbitrator which are pertinent to this case included the following:

“FINDINGS OF FACT
1. That the Respondent, ANTHONY CLEMENTI, objected in the Circuit Court of Cook County to a law suit and requested that this mater be settled through arbitration as provided in Exhibit #1, the laundry lease agreement.
2. That ANTHONY CLEMENTI is one of the beneficial owners and authorized agent for the other beneficial owners of the land trust that holds title to the premises which is the subject matter of this case.
3. That at the time ANTHONY CLEMENTI purchased the premises he received the following:
(a) Affidavit of Title showing no laundry lease.
(b) A title guaranty policy subject to the claims of all parties in possession.
(c) An assignment of the beneficial interest in the title holding land trust.
4. That at the time of the aforesaid purchase BEST COIN-OP, INC. was the lessee [and] had machines upon the premises.
5. That ANTHONY CLEMENTI had knowledge of the lease of the machines and in fact desired to terminate the lease and had been advised by the Seller [Weitzema] that the lease had been terminated.
6. That ANTHONY CLEMENTI disconnected the machines and installed his own machines contrary to the terms of the lease.
* * *
9. That the lease set forth in Exhibit #1 was entered into by the owner of the owner of the premises and by the terms of that lease all successors in interest are construed to be bound by that lease.” (Emphasis added.)

After making these written findings, the arbitrator awarded $2,500 to Best and ordered the $300 cost of arbitration to be borne by Clementi.

On August 4, 1981, Best, not having received satisfaction of the arbitrator’s award, delivered a “demand letter” to defendants’ counsel. On September 15, 1981, Best filed a petition in the circuit court of Cook County to confirm the arbitrator’s award. Because defendants failed to respond to the petition, Best moved for default judgment. A hearing on Best’s motion was held on November 20, 1981, at which time the trial court granted defendants leave to file within 21 days an answer to Best’s petition to confirm the arbitrator’s award. Best contends that the trial court directed that defendants’ answer was to have been predicated upon an allegation of “corruption, fraud or other undue means” as provided by section 12, paragraph (b) of the Act. (Ill. Rev. Stat. 1979, ch. 10, par. 112(b).) Section 12(b) requires that vacatur of an arbitrator’s award must be applied for within 90 days after such award is received except where “corruption, fraud or other undue means” are asserted, in which case application for vaca-tur must be made within 90 days “after such grounds have become known or should have become known.”

On December 11, 1981, more than five months after the July 10, 1981, award was delivered to them, defendants filed an “Application to Vacate Arbitration Award.” However, defendants’ application was not based on “corruption, fraud or other undue means” as directed by the court’s November 20, 1981, order. Rather, defendant’s application stated only that the award “was entered without a legal basis” and that “the evidence produced by [Best] failed to establish in any way the existence of a lease binding on the defendants.” Defendants claimed that their “application” was timely brought within the 21-day period allowed them by the court to respond to Best’s petition for confirmation of the award.

On January 25, 1982, Best moved for judgment on the pleadings alleging defendants had failed to comply with the court’s order of November 20, 1981, directing that their response be predicated upon “corruption, fraud or other undue means” as required by section 12(b). On February 5, 1982, the trial court entered judgment for Best in the amount of $3,484.96. Defendants appeal from that judgment.

We consider initially defendants’ contention that despite the 90-day time limit allowed by section 12(b) for applying for vacatur of an arbitration award except where “corruption, fraud or other undue means” are asserted, defendants’ application for vacatur was “timely” since it was in fact brought within the 21 days allowed them by the court on November 20, 1981. Best contends on the other hand that because defendants’ application for vacatur was not filed within 90 days after defendants received the arbitration award and because that application did not assert “corruption, fraud or other undue means” as required by section 12(b) and directed by the trial court, such application was not timely.

As previously noted, grounds for vacatur of an arbitration award must be asserted in accordance with section 12 of the Act which provides in part as follows:

“Sec. 12. Vacating an award, (a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 5, as to prejudice substantially the rights of a party; or
(5) There was no arbitration agreement and the issue was not adversely determined *** and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by the circuit court is not ground for vacating or refusing to confirm the award.
(b) An application under this Section shall be made within 90 days after delivery of a copy of the award to the applicant, except that if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known." (Emphasis added.) Ill. Rev. Stat. 1979, ch. 10, par. 112.

Although the question of whether a valid lease exists between the parties can be raised prior to arbitration, such a determination is not a prerequisite to proceeding with the arbitration. (Mid-America Regional Bargaining Association v. Modern Builders Industrial Con crete Co. (1981), 101 Ill. App. 3d 83, 87, 427 N.E.2d 1011.) Defendants had a right under section 12(a)(5) to challenge the arbitration award on the basis that no binding lease containing an arbitration award agreement existed and to have a court resolve that challenge either: (1) prior to arbitration through proceedings to compel or to stay arbitration (Ill. Rev. Stat. 1979, ch. 10, par. 102); (2) through a timely defense to a petition to confirm the arbitration award (Ill. Rev. Stat. 1979, ch. 10, par. Ill); or (3) through a timely application to vacate the arbitrator’s award (Ill. Rev. Stat. 1979, ch. 10, par. 112). Had a court determined there was no binding lease between the parties, the court could have stayed arbitration proceedings until the issue was resolved or the court could have vacated the arbitrator’s award. (Mid-America Regional Bargaining Association v. Modern Builders Industrial Concrete Co. (1981), 101 Ill. App. 3d 83, 86.) Where there is, however, no allegation that the arbitration award was procured by “corruption, fraud or other undue means,” the absence of a binding lease must be raised within the 90-day limitation period provided by section 12(b).

It was, in the first instance, defendants’ action in moving for dismissal of Best’s initial circuit court suit which precluded a judicial determination of the binding effect of the lease in question.

Defendants’ motion to dismiss the circuit court action, granted on April 1, 1981, did not claim that the lease was invalid or unenforceable but requested dismissal of the action based only upon the lease provision that any dispute arising thereunder was to be submitted to arbitration. The trial court was not requested by defendants to determine the validity of the lease. Defendants are, therefore, now estopped from arguing that the award should be vacated due to lack of such judicial determination prior to arbitration.

We note that even though defendants are so estopped, they could have challenged the arbitrator’s award after receipt of that award by timely asserting grounds for vacatur either in an application to vacate the arbitration award or in response to a petition to confirm such award. Absent an allegation of “corruption, fraud or other undue means,” however, vacatur based upon an assertion that no valid lease exists must be asserted within 90 days after receipt of the arbitrator’s award. Ill. Rev. Stat. 1979, ch. 10, par. 112(b).

Defendants here contend, despite this 90-day limitation, that they sought vacatur of this arbitration award within the 21 days allowed them by the trial court to respond to Best’s petition to confirm the award. Such action by a trial court cannot, however, extend the 90-day period in which defendants must assert section 12 grounds for vacatur of an arbitration award. Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 1095, 398 N.E.2d 103.

Defendants also assert that the 90-day limitation was preserved for them when, on September 15, 1981, Best filed its application to confirm the July 10, 1981, arbitration award. The filing of such application, however, does not extend the 90-day limitation within which section 12 grounds for vacatur of an arbitration award must be presented. (Bloom v. Landy (1979), 72 Ill. App. 3d 383, 394, 389 N.E.2d 1286.) If, within the 90-day period following receipt of the arbitration award, a party fails to assert section 12 grounds for vacatur of an arbitration award, such grounds are barred and a trial court must confirm the award. Mid-America Regional Bargaining Association v. Modern Builders Industrial Concrete Co. (1981), 101 Ill. App. 3d 83, 86; Kress Corp. v. Edward C. Levy Co. (1981), 102 Ill. App. 3d 264, 267, 430 N.E.2d 593.

Because defendants in the case sub judice failed to assert any section 12 grounds for vacatur of the arbitration award within 90 days after receipt of that award or to allege “corruption, fraud or other undue means” as required by section 12(b), they are barred from asserting such grounds.

Defendants contend that a mistake appears on the face of the arbitration award which requires its vacatur. The award is, defendants argue, inconsistent with statements made by the arbitrator at the June 26,1981, hearing with regard to the original lease document.

A photocopy, rather than the original lease document, was produced by Best at the hearing. Best’s counsel indicated that the original was being held by a bank as collateral for a loan made to Best. The arbitrator, relying upon the photocopy, had concluded that the lease was valid and enforceable. The arbitrator, however, advised defendants that he would issue an “arbitrator’s subpoena” and they could deliver it to the bank for the purpose of examining the original lease document. The arbitrator stated that if, after defendants delivered the subpoena to the bank, they had some basis to determine that the lease had been terminated or if in fact a lease did not exist, they should inform him of that fact by affidavit and letter. The arbitrator then indicated that should an original lease document not exist “[he] may have to take further testimony.” The arbitrator stated: “If in fact there’s one [original] at the bank that substantiates [Best’s] testimony, that does it. And if that [original] doesn’t exist, then we are going to have to find out why that original lease has disappeared.”

The record does not indicate that defendants delivered an “arbitrator’s subpoena” to the bank or that defendants had reason to believe that the original lease document had terminated or did not exist. Defendants produced no evidence that would lead us to conclude that the award was inconsistent with the arbitrator’s statements. Moreover, had defendants discovered such evidence after the award was delivered, they could have made timely application to the arbitrator to clarify the award within 21 days after delivery (HI. Rev. Stat. 1979, ch. 10, par. 109) or if the alleged “mistake” related only to form and not the merits, defendants could have, within 90 days after delivery of the award, applied to the court for modification or correction of the award. (El. Rev. Stat. 1979, ch. 10, par. 113(aX3).) Defendants, having failed to timely exercise any of the remedies available to them, have waived the question of “mistake.” We conclude, therefore, that the trial court in this instance properly confirmed the arbitrator’s award.

For the reasons herein stated, the trial court’s confirmation of the arbitrator’s July 10,1981, award is affirmed.

Affirmed.

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

      Although Clementi and McCarthy were two of four beneficiaries of the land trust, they were the only named defendants in the breach of lease action in the circuit court, in the arbitration proceedings and in the petition to confirm arbitration award.

      The April 1, 1981, order contains the following: “IT IS ORDERED that the above complaint is dismissed. Plaintiff is directed pursuant to the lease to the American Arbitration Association if he so desires.”

      The record contains no report of proceedings or written order to support Best’s contention that this restriction was in fact imposed by the court other than the following notation entered on the trial court’s docket sheet for 11 — 20—81: “leave to defendant to file answer under Ch. 10 sec. 112 (5)b. Answer due 21 days;”


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REGINALD WILLIAMS, Defendant-Appellant.
    First District (4th Division)
    No. 82—1815
    Opinion filed December 29, 1983.

      Steven Clark and Donna Finch, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Thomas J. Finn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Reginald Williams, was convicted of one count of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2) and sentenced to an eight-year term in the Illinois Department of Corrections.

On appeal, defendant raises four issues. We find it necessary, however, to consider only the first of these; namely, whether the trial court’s failure to give Illinois Pattern Jury Instruction (IPI), Criminal, No. 2.03 (2d ed. 1981) concerning the presumption of innocence and the State’s burden of proof, denied defendant a fair trial. Our affirmative finding on this issue obviates any consideration of the subsequent claims of error raised by defendant.

Accordingly, we reverse the decision of the trial court and remand for a new trial.

On August 25, 1981, at approximately 5:30 p.m., the Gas City Service Station in Evergreen Park was robbed. The robber held a part-time employee of the station at gunpoint and demanded he surrender the station’s money. After the robber fled, the employee telephoned the police and reported the incident. Approximately one-half hour prior to the robbery, a woman who lived two doors away from the station witnessed,a man duck down under the dashboard of an unfamiliar car parked in the alley between the service station and her home. The woman then saw a strange man walking toward the Gas City station. She wrote down the license number of the car and reported her observations to the police, who ran a vehicle registration check on the license plate. The check revealed that the car was registered to defendant, Reginald Williams.

Defendant was brought in for a line-up. At the line-up, the Gas City employee identified defendant as the man who robbed the station. Defendant was charged by information with one count of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2) and one count of armed violence (HI. Rev. Stat. 1981, ch. 38, par. 33A — 2). The State moved to nolle pros the armed-violence count, and the motion was granted. Defendant demanded a jury trial.

At trial, neither the defense nor the State tendered the presumption-of-innocence instruction (IPI Criminal No. 2.03), and the trial court failed to give the instruction sua sponte. The only mention of the continuing presumption of defendant’s innocence by the trial court was made to prospective jurors at the onset of trial during voir dire examination. The State’s burden of proof was mentioned once during voir dire, and the standard of proof was mentioned again as part of the issues instruction for armed robbery. The jurors were also instructed that the applicable law was stated in the instructions and that it was their duty to follow them. Defendant did not object at trial to the court’s failure to give IPI Criminal 2.03, nor did he raise the issue in a post-trial motion.

The jury found defendant guilty of armed robbery. The trial court sentenced defendant to an eight-year term in the Illinois Department of Corrections. This appeal followed.

Opinion

On appeal, defendant claims as error the trial court’s (1) failure to give IPI Criminal No. 2.03 sua sponte, (2) admission into evidence of statements by defendant which were not tendered to the defense during discovery, (3) denial of defendant’s motion to quash arrest and suppress identification testimony based on a lack of probable cause, and (4) imposition of a sentence greater than the minimum statutory term. Due to the dispositive nature of defendant’s first claim of error, we need address ourselves solely to that issue.

Defendant asserts that the trial court’s failure to give IPI Criminal No. 2.03, an instruction on the presumed innocence of the defendant and the State’s burden of proof, denied him his due process right to a fair trial. The State argues that defendant, by failing to either object or tender the instruction at trial, waived this issue on appeal. Alternatively, the State maintains that where, as here, the jury is informed of the substance of IPI Criminal No. 2.03 by the “totality of circumstances” during trial, the trial court is relieved of its obligation to instruct on its own motion.

While we agree with the State that the determination of whether failure to give the presumption-of-innocence instruction constitutes reversible error is to be based on the “totality of circumstances” in each particular case, we find that under existing law and in light of the unique totality of circumstances presented in the record before us, we must conclude that in this case, the trial court’s failure to give IPI Criminal No. 2.03 deprived defendant of a fair trial.

The presumption-of-innocence instruction, IPI Criminal No. 2.03, reads as follows:

“The defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.”

This specific instruction was not given. Citing People v. Parks (1976), 65 Ill. 2d 132, 137, 357 N.E.2d 487, 489, the State posits the general rule that a party who desires a specific instruction must offer it and request the court to give it, and the trial court has no obligation to instruct on its own motion. The State conveniently neglects, however, to bring to the court’s attention the remaining part of the paragraph in Parks, in which eur supreme court sets forth the well-settled modification to this general rule:

“In criminal cases, however, this rule is modified in certain situations by the requirements of a fair trial. It has been held that a court bears the burden of seeing that the jury is instructed on the elements of the crime charged, on the presumption of innocence and on the question of burden of proof. People v. French (1972), 5 Ill. App. 2d 908; People v. Kuykendall (1970), 120 Ill. App. 2d 225; People v. Davis (1966), 74 Ill. App. 2d 450; Note, Criminal Juries and Defenses, Instruction of Jurors, 7 Loy. U. Chi. L.J. 1036, 1042, 1046 (1976).” (People v. Parks (1976), 65 Ill. 2d 132, 137, 357 N.E.2d 487, 489.)

This modification to the general rule is consistent with the committee note to IPI Criminal No. 2.03, which states in part,

“The firm commitment to presumed innocence which can be overcome only by proof beyond a reasonable doubt is the touchstone of American criminal jurisprudence. This instruction must be given in all cases.”

Parks makes it clear that the trial judge has a responsibility to ensure that certain essential instructions are given. (People v. Roberts (1979), 75 Ill. 2d 1, 13, 387 N.E.2d 331, 337.) The State insists, however, that defendant’s failure to either object to or tender a particular instruction at trial precludes him from raising the issue on appeal. Again, while the State is correct in its statement of the general rule of waiver (73 Ill. 2d R. 366(b)(2)(i)), the rule will not operate where, as here, the effect of the rule is to deprive an accused of his constitutional rights of due process. People v. Burson (1957), 11 Ill. 2d 360, 370, 143 N.E.2d 239, 245.

Supreme Court Rule 451(c) (73 Ill. 2d R. 451(c)) provides for a limited exception to the rule of waiver. In discussing the exception to the waiver rule as it relates to the failure to raise an issue in the trial court, our supreme court has stated that a court may, as a matter of grace, take notice of errors appearing on the record which deprive the accused of a fair and impartial trial. (People v. Roberts (1979), 75 Ill. 2d 1, 14, 387 N.E.2d 331, 337.) The trial court’s failure to give any of the three essential jury instructions (elements of the crime, presumption of innocence, or the State’s burden of proof) deprives an accused of a fair and impartial trial. (People v. Roberts (1979), 75 Ill. 2d 1, 13-14, 387 N.E.2d 331, 337.) For this reason, we may take notice of the trial court’s failure to give IPI Criminal No. 2.03 despite defendant’s not having raised the issue at trial or in a post-trial motion. People v. Williams (1981), 97 Ill. App. 3d 394, 400, 422 N.E.2d 1091, 1096.

Alternatively, the State argues that the court’s omission of IPI Criminal No. 2.03 does not constitute reversible error because (1) the trial court explained its substance during the voir dire examination, (2) the issue instruction on armed robbery apprised the jury that defendant’s guilt must be proven beyond a reasonable doubt, and (3) the evidence of defendant’s guilt was overwhelming. The State maintains that through the combination of these factors, or the “totality of circumstances,” the jury had a complete understanding of the presumption of innocence and the State’s burden of proof such that defendant received a fair trial. We cannot agree.

A situation similar to that presented by the instant case was dealt with by this court in People v. Carpenter (1981), 101 Ill. App. 3d 792, 428 N.E.2d 983. As in the case at bar, the State in Carpenter argued that the defendant was not prejudiced by the omission of IPI Criminal No. 2.03 because the substance of the instruction was communicated to the jury by the trial court’s statements during voir dire examination at the onset of the proceedings. (101 Ill. App. 3d 792, 794, 428 N.E.2d 983, 984.) The State also maintained that the jury was instructed as to the People’s burden of proof beyond a reasonable doubt by the issues instruction given for one of the offenses charged. The Carpenter court rejected both these arguments.

In considering all the facts and circumstances at trial, the Carpenter court reasoned that the impact of the trial judge’s statements during voir dire was diminished by the subsequent instruction that the applicable law was stated in the instructions and that it was the jury’s duty to follow it. (People v. Carpenter (1981), 101 Ill. App. 3d 792, 797, 428 N.E.2d 983, 986.) The court stated that the jurors could have believed the subsequent instruction required them to disregard the trial court’s previous statements and to listen anew for the applicable law. (101 Ill. App. 3d 792, 797, 428 N.E.2d 983, 986.) Here, as in Carpenter, the jury was informed that “the law that applies to this case is stated in the instructions and it is your duty to follow all of them.” Thus, as in Carpenter, the impact of any statement made by the judge during voir dire was diminished, and the jurors could have believed that, in reaching a verdict, they were to disregard any statements made by the trial court prior to the instructions.

The Carpenter court further reasoned that the issues instruction on one of the offenses charged, only minimally informed the jury as to the State’s burden of proving the defendant guilty beyond a reasonable doubt. (101 Ill. App. 3d 792, 797, 428 N.E.2d 983, 986.) In addition, the court found that failure to charge on the presumption of innocence is not cured by a correct charge on the burden of proof. Citing Dodson v. United States (4th Cir. 1928), 23 F.2d 401, 403, the Carpenter court quoted with approval the following:

“ ‘[T]he defendant was entitled to have the jury instructed as to the presumption of innocence at the time when they were given the other instructions in the case. Jurors understand that they are to be guided in their deliberations by the instructions given them after the testimony is concluded; and the accused is entitled to have any proper instruction given at that time. An instruction given at the beginning of the trial is likely to be forgotten or misunderstood; and in this case, even if the charge as to the presumption of innocence had been correct, the jury might well have concluded that, having been given at the beginning of the trial, and not along with the other instructions, it was not a matter which they were to consider in their deliberations.’ ” People v. Carpenter (1981), 101 Ill. App. 3d 792, 798, 428 N.E.2d 983, 987.

We must conclude, as did the Carpenter court, that the oral statement of a judge made at the beginning of a criminal trial is not the equivalent of a jury instruction and does not cure the failure to give an essential instruction. (Bloomington & Normal Ry. v. Gabbert (1903), 111 Ill. App. 147, 150.) Similarly, we do not find that the minimal mention of the burden of proof during an issues instruction adequately apprises the jury of the substance of IPI Criminal No. 2.03. Such minimal mention is hardly, as the State would have us believe, the “careful, complete explanation to the jury that the prosecution bears the burden of proof beyond a reasonable doubt” found adequate to convey the substance of a presumption-of-innocence instruction in United States v. DeJohn (7th Cir. 1981), 638 F.2d 1048, 1059. Rather than sufficiently imparting to the jury an understanding of the presumption of innocence concomitant with the prosecution’s burden of proof, this minimal statement ignores both the special purpose of a presumption-of-innocence instruction and the need for such an instruction in this case. Taylor v. Kentucky (1978), 436 U.S. 478, 488, 56 L. Ed. 2d 468, 477, 98 S. Ct. 1930,1936.

The final element of the “totality of circumstances” perceived by the State to justify the trial court’s failure to give IPI Criminal No. 2.03 is the “overwhelming” evidence of defendant’s guilt. WMe it does appear that the evidence was sufficient to sustain a conviction for armed robbery, for this reviewing court to affirm that conviction in light of the facts and circumstances of this case would violate the constitutional principles of due process (People v. French (1972), 5 Ill. App. 3d 908, 909, 284 N.E.2d 481, 482) and fundamental fairness (People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861, 864). We are not convinced beyond a reasonable doubt that the trial court’s omission of the presumption-of-innocence instruction did not contribute to the jury’s verdict. People v. Boose (1980), 85 Ill. App. 3d 457, 461, 406 N.E.2d 963, 966.

We therefore hold that, viewing the totality of the circumstances, the trial court’s failure to give IPI Criminal No. 2.03 constitutes reversible error. This holding renders unnecessary our consideration of the other issues raised by defendant on appeal.

For these reasons, we reverse the decision of the trial court and remand for a new trial.

Reverse and remand.

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