text:
    SCOTT STATE BANK, Plaintiff-Appellant, v. TABOR GRAIN COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—82—0239
    Opinion filed October 18, 1982.
    Darrell F. Parish and Linda M. Castleman, both of Owen, Roberts, Susler & Murphy, P. C., of Decatur, for appellant.
    Rosenberg, Rosenberg, Bickes, Johnson & Richardson, Chartered, of Decatur (David L. Johnson, of counsel), for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff sued defendant in the circuit court of Moultrie County for conversion of grain in which it held a security interest under the Uniform Commercial Code — Secured Transactions (UCC) (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 101 et seq.). The trial court entered summary judgment for the defendant and plaintiff appeals. The narrow question presented is the sufficiency of the description in a financing statement of the real estate on which the grain was produced under section 9 — 402(1) of the UCC (Ill. Rev. Stat. 1979, ch. 26, par. 9— 402(1)).

Guy Wallace, a farmer, was a customer of the plaintiff and entered into a security agreement with it for a line of credit. The agreement created a security interest in all of Wallace’s share of crops grown on certain farm land located in Moultrie County. The land was described with particularity under the government survey system. In order to perfect the security interest (Ill. Rev. Stat. 1979, ch. 26, par. 9 — 302), a financing statement was prepared and filed in the office of the recorder of deeds of Moultrie County. The description of the property covered by the statement is:

“The debtors [sic] share of the crops grown on certain real estate as described on a certain Security Agreement dated June 1,1979 on file with the Scott State Bank, Bethany, IL.”

During the autumn and winter of 1979 Wallace sold grain to the defendant and did not apply the proceeds to his debt with the plaintiff. He defaulted in early 1980 and afterward declared bankruptcy. Plaintiff then filed the instant law suit alleging that defendant had converted grain in which plaintiff held a security interest.

Some depositions were taken but their content is not material in view of our disposition of this case. They related to issues of waiver and estoppel. However, the trial court allowed the defendant’s motion for summary judgment on the ground of lack of proper description in the financing statement, a conclusion with which we agree.

The applicable law is found in sections 9 — 402(1) and 9 — 110 of the UCC (Ill. Rev. Stat. 1979, ch. 26, pars. 9 — 402(1), 9 — 110). Section 9 — 402(1) provides in pertinent part:

“A financing statement is sufficient if it gives the names of the debtor and the secured party, is signed by the debtor, gives an address of the secured party from which information concerning the security interest may be obtained, gives a mailing address of the debtor and contains a statement indicating the types or describing the items of collateral. *** When the financing statement covers crops growing or to be grown, the statement must also contain a description of the real estate concerned.”

Section 9 — 110 provides some guidance as to the sufficiency of a description by providing:

“For the purposes of this Article any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.”

Under the facts of the case at bar we are faced with what is really a dual question: (1) Is there any description at all in the financing statement? and (2) Assuming arguendo that there is a minimal threshold of description, can it be fleshed out through incorporation by reference to an unrecorded document? Our answer is in the negative to both.

The merest glance at the financing statement reveals that it contains no description of the real estate whatsoever. We find pertinent a statement in White & Summers, Uniform Commercial Code sec. 23— 16, at 964 (2d ed. 1980):

“When the collateral is growing crops or crops to be grown, 9 — 402(1) requires a description of the real estate must be included. The purpose of the description is to allow a third party creditor to identify the crops. Courts thus allow any description which reasonably identifies the crops; a legal metes and bounds description is not necessary. Complete omission of any description of the real estate is a major error. ***.”

The rationale of the rule is obvious. While the UCC has adopted a system of “notice filing” (see Ill. Ann. Stat., ch. 26, par. 9 — 402, Uniform Commercial Code comment, at 285-86 (Smith-Hurd 1974)), it is notice of the res, not of the persona. Crops do not grow in a vacuum nor in the air; they grow in soil. Without some indication as to their location, the financing statement fails of its purpose and becomes a nullity. The description of the real estate is not only for the protection of third parties, but also for the debtor. If the security agreement covered only a portion of his ownership or tenancy, it would be improper for a nondescriptive financing statement to purport to cover the whole.

While we are of the opinion that the total lack of any description in the financing statement is dispositive of the matter, the parties have argued incorporation by reference. Plaintiff has cited two preUCC cases (Holm v. Lynd (1931), 343 Ill. 645, 176 N.E. 57; Smith v. Crawford (1876), 81 Ill. 296) for the proposition that real estate may be properly described by reference to an unrecorded plat or other paper in which the property is properly described. We find this authority unpersuasive in the present circumstances. Both of those cases involved a controversy between the parties privy to the transaction; the UCC by its nature involves third parties and the public at large. Furthermore, the comments to the UCC indicate that incorporation must be by reference to a recorded document. Comment 5 to section 9 — 402 states in part:

“*** but of course the incorporation of such a description by reference to the recording data of a deed, mortgage or other instrument containing the description should suffice under the most stringent standards. The proper test is that a description of real estate must be sufficient so that the fixture financing statement will fit into the real estate search system and the financing statement be found by a real estate searcher.” (Emphasis added.) Ill. Ann. Stat., ch. 26, par. 9 — 402, Uniform Commercial Code Comment, at 287 (Smith-Hurd 1974).

We believe that the rationale of the rule is apparent. Financing statements nearly always concern private.documents. It requires little imagination to envision the problems generated if a private person, not a bank examiner, should arrive on the plaintiff’s premises and demand to see the loan and discount list.

As previously indicated, issues of waiver and estoppel were raised and argued below, but the trial court’s order was based solely on the failure of the description in the financing statement. Since we agree with the court, we need not discuss these additional problems.

For the foregoing reasons, the order of the circuit court of Moultrie County granting summary judgment in favor of the defendant and against the plaintiff is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LOREN E. MEYERS, Defendant-Appellee.
    Third District
    No. 81-255
    Opinion filed October 19, 1982.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Charles W. Hoffman, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The State appeals from a suppression order entered by the circuit court of Peoria County, Illinois.

The defendant, Loren E. Meyers, was indicted for indecent liberties with a child. Prior to trial, the defendant moved to suppress certain statements and admissions on the basis that they had been obtained in violation of his sixth amendment right to counsel. The trial court granted the defendant’s motion, and the State has appealed, contending that the court’s ruling is contrary to the manifest weight of the evidence. The defendant, in addition to arguing that the trial court’s order of suppression is sufficiently supported by the evidence of record, requests that this court dismiss the State’s appeal. The basis for the defendant’s request is that prior to filing its notice of appeal the State failed to certify to the trial court that the suppression order substantially impairs the State’s ability to prosecute the case. (See People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501.) Because of apparent inconsistencies in case-law interpreting the Young certification requirement and because a motion and objections involving the same were taken with the case herein, we address the issue in detail.

The facts relevant to the certification issue in the present case follow. On April 9, 1981, the trial court entered its order suppressing the defendant’s statements. The State thereafter filed a notice of appeal on May 5, 1981; and on May 18, 1981, the office of the State Appellate Defender was appointed to represent the defendant. On August 3, 1981, the State, without notifying appellate defense counsel, returned to the trial court and filed a certification substantially complying with the Young requirement. On August 18, one week after filing its brief on appeal, the State filed its certification with this court as a supplemental volume to the record on appeal. This filing was unaccompanied by any motion or petition for leave to supplement the record, and there is no indication that the State gave appellate defense counsel notice of such filing. Nonetheless, on August 20, 1981, the defendant moved to strike the certification filed in this court. On August 27, 1981, the State filed an objection to the defendant’s motion, and this court ruled that the motion and objection would be taken with the case.

Initially we note that the above-outlined pattern of conduct, as between the office of the State Appellate Defender and the State’s Attorneys Appellate Service Commission, which represents the State on appeal, is not unprecedented since the Illinois Supreme Court announced the certification requirement in Young. See, e.g., People v. Hoffner (1981), 99 Ill. App. 3d 516, 425 N.E.2d 603; People v. Norris (1981), 101 Ill. App. 3d 664, 428 N.E.2d 987; People v. Jones (1981), 102 Ill. App. 3d 238, 429 N.E.2d 1094; People v. Keath (1981), 101 Ill. App. 3d 652, 428 N.E.2d 992.

Our inquiry in this case is two-pronged — (1) whether certification is necessary; and (2) whether certification, if required, may be filed after the State has filed its notice of appeal. In Hoffner, this court rejected the defendant’s argument that the State, having failed to satisfy the Young certification requirement, thereby failed to perfect its right to an interlocutory appeal. We determined in Hoffner that the State was not required to file certification on the basis that “the Young decision does not apply *** to State appeals of suppression orders from which the State was allowed to appeal prior to Young” (99 Ill. App. 3d 516, 517, 425 N.E.2d 603, 605), and proceeded to decide the merits of the case. Today we reexamine our position.

Subsequent to our opinion in Hoffner, the Fourth District Appellate Court has ruled, contra to Hoffner, that the Young certification requirement applies to all suppression orders entered against the State. Specifically the court stated:

“We find nothing in Young indicating an intention to limit its certification requirement to orders not previously deemed appealable. Every expression of the court’s holding is stated in terms indicating its applicability to all pretrial orders of suppression entered against the State. Its rationale is to limit such appeals to orders substantially impairing the prosecution.” People v. Norris (1981), 101 Ill. App. 3d 664, 667, 428 N.E.2d 987, 989; see also People v. Jones (1981), 102 Ill. App. 3d 238, 241, 429 N.E.2d 1094, 1097-98; People v. Keath (1981), 101 Ill. App. 3d 652, 655, 428 N.E.2d 992, 994.

The reasoning of the fourth district court, and the basis for the defendant’s position herein, is that the court in Young clarified the existing Supreme Court Rule respecting State appeals (73 Ill. 2d R. 604(a)(1)) by establishing a simple per se requirement that, henceforth (the court’s opinion is dated October 17, 1980), the State, in order to pursue an interlocutory appeal under Rule 604(a)(1), must certify to the trial court that an order of suppression substantially impairs its ability to prosecute the case. In Young, the order of suppression resulted when the State sought to introduce statements which had been made under immunity granted by an Illinois statute. The court, in dicta, discussed the historical underpinnings of the new rule requiring certification, observing that the State historically had been permitted to appeal suppressions based on violations of search and seizure and involuntary confessions, but that, with respect to suppressions based on other grounds, the State was variously: (1) precluded from advancing interlocutory appeals; or (2) required to establish that the trial court’s suppression order had the effect of blocking prosecution; or (3) permitted to appeal without apparent restriction. Following a thorough analysis of cases attempting to apply Rule 604 to State appeals, the Young court held that:

“Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.” 82 Ill. 2d 234, 247, 412 N.E.2d 501, 537.

Having thoroughly reviewed Young and its progeny, we are convinced that the basis for suppression is no longer determinative of the State’s duty to certify. Rather, the relevant inquiry is whether or not the trial court’s order “suppressed” evidence. (People v. Phipps (1980), 83 Ill. 2d 87, 413 N.E.2d 1277.) In the instant case, the defendant sought suppression of evidence (admissions and statements) allegedly obtained in violation of the defendant’s sixth amendment right to counsel. Unquestionably, the trial court’s order has the effect of “suppressing” evidence, since the defendant’s admissions and statements would not be admissible against the defendant as evidence of his guilt. We hold, therefore, that certification was required in this case. To the extent that our opinion in Hoffner is inconsistent with the opinion herein, it should be, and hereby is, overruled.

We turn next to the timing of the State’s certification. The defendant contends that a certification filed in the trial court after notice of appeal has been filed is untimely and such certification should be stricken from the record on appeal. In Hoffner, we ruled that certification filed by the State after its notice of appeal would be stricken. This decision logically followed from the determination that certification was not required in the first place. Since we have today decided that certification is, indeed, required in all State appeals from suppression orders, we will reexamine the timeliness aspect of the State’s certification as well.

The defendant’s position proceeds from the premise that the Young certification is a prerequisite to a State appeal; if the State attempts to file a notice of appeal before the certification has been filed, the appeal should be dismissed because the State has failed to establish its right to appeal. The State’s response to this argument is that the Young certification is not jurisdictional, therefore the certificate may be filed at any time without approval of either the trial court or this court. While we agree that the Young certification requirement is not jurisdictional (Norris; Jones; Keath), we nonetheless believe that the chronological sequence of events relative to the filing of such certification is relevant to appropriate disposition of a State appeal.

In Young, the court specifically stated the purpose of certification.

“Our intention in requiring this certification is not to formulate a standard by which courts may determine the appealability of a particular order. As this court noted in Van De Rostyne [(1976), 63 Ill. 2d 364, 349 N.E.2d 16], that would indeed be a heavy burden, one which we do not believe justified by the marginal diminution in the number of appeals which we anticipate such a procedure would produce. Instead we rely solely upon the good-faith evaluation by the prosecutor of the impact of the suppression order in his case. We are not unmindful that in the heat of the adversarial process a State’s Attorney may attach to a suppression order a degree of significance which a less involved evaluator would not accord it. On the whole, however, we believe that the State’s need to allocate its heavily taxed resources in the most productive manner will naturally limit appeals to those orders which substantially impair its ability to prosecute its case. The prevention of those few appeals which constitute exceptions to this general rule does not, in our judgment, justify the expenditure of the judicial resources necessary to evaluate the effect of the suppression in every instance.” 82 Ill. 2d 234, 247-48, 412 N.E.2d 501, 507.

In our opinion, it defies logic for the State to file its notice of appeal first, and then, subsequently, to give careful reflection to evaluate whether or not an interlocutory appeal was warranted.

The State resists dismissal of its appeal, relying on Federal cases ruling on the Federal counterpart of Illinois Supreme Court Rule 604(a)(1), i.e., 18 U.S.C.S. sec. 3731 (1979). These cases have been summarized in People v. Norris (1981), 101 Ill. App. 3d 664, 667-68, 428 N.E.2d 987, 990. In the Federal cases, as in Norris, Jones and Keath, the courts proceeded to consideration of the merits of the appeals before them upon determining that there was no jurisdictional bar. In Jones, the court further justified its review of the merits, despite the State’s delayed filing of certification, on the basis that Supreme Court Rule 329 (73 Ill. 2d R. 329), allows a reviewing court to correct material omissions and improper authentifications. (102 Ill. App. 3d 239, 242, 429 N.E.2d 1094, 1098.) The language of Rule 329 is discretionary — not mandatory. Thus, while it was within the discretion of the Jones, Norris and Keath courts, and those Federal courts ruling on the certification issue, to permit the government to perfect their appeals tardily, it is also within the discretion of this court to strike an untimely certification in a proper case.

Recent case law from the Second District Appellate Court provides some guidance on the handling of defective certifications. In People v. Lentini (1982), 106 Ill. App. 3d 695, 435 N.E.2d 1280, the court was faced with an oral, rather than written “certification” made by the State’s Attorney upon the trial court’s order of suppression. After observing that “[t]he State’s right of appellate review is limited to rulings which substantially impair prosecution of the case” (106 Ill. App. 3d 695, 699, 435 N.E.2d 1280, 1283 (citing People v. Flatt (1980), 82 Ill. 2d 250, 412 N.E.2d 509)), the court determined that, since the defendant had failed to make a showing of prejudice by the State’s failure to reduce its certification to a writing, the oral pronouncement made in the trial court substantially complied with Young and, in any event, would have been harmless error. 106 Ill. App. 3d 695, 700, 435 N.E.2d 1280, 1284.

In People v. Carlton (1982), 106 Ill. App. 3d 780, 436 N.E.2d 720, defendant was not represented by counsel in the appellate court. The State appealed from an order of suppression, but neither a written nor oral certification of impairment was offered by the State. Rather than dismissing the appeal, the appellate court disposed of the case by remanding it to the trial court with directions to comply with Supreme Court Rule 607 (73 Ill. 2d R. 607) and to determine whether appellate defense counsel should be appointed. In dicta the court declared that “[ajbsent a certificate of impairment the State may not seek review of an order suppressing evidence.” 106 Ill. App. 3d 780, 782, 436 N.E.2d 720, 722.

Although the Carlton court specifically stated that it would not dismiss the appeal under the circumstances therein, the court emphasized that “the certificate of impairment must be supplied *** should subsequent review be sought by the State.” (106 Ill. App. 3d 780, 782, 436 N.E.2d 720, 722.) It is apparent to us that the Second District court is prepared to dismiss a State appeal for noncompliance with Young in an appropriate case. We agree that dismissal may be an appropriate sanction.

Supreme Court Rule 615(b)(2) (73 Ill. 2d R. 615(b)(2)) grants the reviewing court discretionary authority to “set aside *** any or all of the proceedings subsequent to or dependent upon the *** order from which the appeal is taken.” We note in passing that dismissal of the government’s appeal, in response to untimely certification, is an appropriate action to be taken at the discretion of Federal courts as well. United States v. Kleve (8th Cir. 1972), 465 F.2d 187, 190 (“Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal” (quoting Rule 3, Federal Rules of Appellate Procedure)).

While we believe that a defendant to criminal charges has legitimate interests in speedy resolution of the State’s case against him and that such interests are impeded by interlocutory appeals, we hesitate to order dismissal in the instant case since the defendant has failed to allege any prejudice whatsoever caused by the delay. We will not countenance a party’s blatant manifestation of disrespect for Supreme Court rules, including case-law interpretations of them, by mechanically accepting documentation such as that which the State offered as a certificate of impairment in this case. To do so would emasculate the Young requirement such that it would amount to no more than a waste of time. Rather, we find the Young certification rule is a substantive one fully capable of enforcement when State noncompliance or defective compliance coupled with prejudice to the defendant are shown. Having said all this, we nonetheless deny defendant’s motion to strike certification and to dismiss the appeal in this case because the defendant has shown no prejudice to him.

Finally, we must address the merits of this appeal. The defendant, during custodial interrogation, made certain references to consultation with an attorney. The question on appeal is whether those references were sufficient to constitute an invocation of the defendant’s constitutional right to counsel, thus prohibiting any further interrogation. The trial court, after a hearing on defendant’s motion to suppress, held that defendant’s remarks and actions were sufficient to invoke his right to counsel and ordered suppression of his statements accordingly. The State argues that the trial court’s decision is contrary to the manifest weight of the evidence. We disagree.

The relevant evidence presented at the hearing revealed generally that defendant was interviewed at the Peoria Police Department with regard to certain allegations made by his daughter. After being advised of his Miranda rights by Sergeant Hammer, defendant agreed to speak to Hammer. Officer Childers then entered the room, and the three of them proceeded to discuss the allegations which had been made concerning the defendant. They also discussed the fact that defendant’s children had been taken into custody and spoke of the possibility of a polygraph examination of defendant.

Hammer testified that the defendant stated, “Do you think I should have a lawyer?” or “Who would you recommend as an attorney?” Hammer told the defendant that he had the right to an attorney, that it was defendant’s own decision whether to have one, and that it would be improper for Hammer to recommend one. The defendant asked Hammer’s advice on whether to take a polygraph examination. Hammer replied, “If I were an attorney I would say to take the polygraph if you were truthful and not take the polygraph if you weren’t being truthful.”

Hammer and the defendant spoke further and the question of an attorney came up again. Officer Childers placed a telephone directory on the desk for the defendant. Hammer then left the room. A short time later he returned and noted that the defendant had the directory in his hands. Childers was talking with the defendant about an attorney. Hammer reminded defendant that he was entitled to an attorney and that it was defendant’s decision. Then Hammer resumed discussing the allegations made by defendant’s daughter. It was at this point that the defendant made the admissions which he sought to suppress.

Officer Childers offered a slightly different account of the interrogation. According to her testimony, when she and Hammer initially told defendant that his children were in custody, defendant asked if he would be able to get them back any sooner if he got an attorney. Childers replied that getting an attorney would not necessarily get his children back any sooner, since there would still have to be an investigation and court proceedings. While Hammer was out of the room, Childers asked the defendant several background questions. The defendant asked her who would be a good attorney to help him get his children back. Childers told the defendant that she could not recommend an attorney, but that he was free to look for one in the phone directory. Childers handed the directory to the defendant so that he could search the yellow pages, and pointed out to him how the attorneys were listed according to specializations.

Childers told the defendant that he would need Hammer’s permission to use the telephone and that she would check into this for him. Childers then left the room and reported to Hammer that she was through with the background questioning. The officers returned to the room. Hammer advised the defendant about the polygraph procedures, child custody procedures, and about the need to finish the investigation. Then the defendant made certain admissions.

The defendant testified that he had asked to consult with an attorney to get help in the return of his children, to get advice about whether to take the polygraph exam, and to get advice about the criminal charges he faced. He further stated that after he had asked about using the telephone and the officers returned to the interrogation room without mentioning the phone, he did not pursue his request for an attorney because it had been brought up só many times that he did not see what more he could do to get one.

On these facts, we agree with the trial court that the defendant’s repeated comments regarding consultation with counsel were sufficient to constitute an invocation of his right to counsel. The trial court found that defendant’s expressions of interest in consulting with counsel triggered that “red light” which compelled a cessation of all further questioning. (People v. Rafac (1977), 51 Ill. App. 3d 1, 364 N.E.2d 991.) We cannot say that the trial court’s conclusion was contrary to the manifest weight of the evidence. Therefore, the trial court’s ruling will not be disturbed.

Affirmed.

SCOTT, P. J., and STOUDER, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES E. LEE, Defendant-Appellee.
    Third District
    Nos. 82—49, 82—50 cons.
    Opinion filed October 19, 1982.

      John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Stephen H. Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The State appeals from the order of the circuit court of Peoria County granting the defendant’s, Charles E. Lee’s, motion to suppress physical evidence seized and statements made following his arrest.

At 2 a.m. on October 29, 1981, Peoria police officer Dwight Borneman was patrolling the area of Madison and Sloan Streets in Peoria in his marked police car. Although he had received no information concerning any crimes in the vicinity that night, the officer patrolled carefully because a rash of burglaries had recently taken place there. The area is mostly residential but contained some businesses, including gasoline stations, taverns, and car washes. The only business then open was a gasoline station. Borneman was driving slowly with his headlights off when he noticed the defendant walking toward a parked car. He carried a large cardboard box which he laid behind the car while reaching for his key. The defendant then peered around and spotted the police car which Borneman had stopped less than one block away. Upon seeing the police car, the defendant turned and ran. Although the defendant was unknown to Officer Borneman, the officer clearly observed and was able to identify the defendant who was standing in the well-lighted street. Borneman radioed in the defendant’s description and then pursued but was unable to apprehend him. The officer returned to the box, which had no lid, and looked inside. It contained a straight rod tire iron lying atop several whole tomatoes, taco shells, and disposable lighters. Within a few minutes, the defendant approached the car and was seized by another officer. Borneman handcuffed the . defendant and searched him and the trunk of his car. The trunk contained more disposable lighters, packages of cigars, and several six-packs of beer. The officer then advised the defendant of his Miranda rights and placed him in a police car. Except for two persons who later left their residence to view the commotion, Borneman saw no one but the defendant on the street that night. After arresting the defendant, Officer Borneman first learned that two Peoria taverns, the Villa Tap and the Bee Gee Tap, had been burglarized earlier that night. Later at the station house, the defendant made certain incriminating statements. After being formally charged with the two tavern burglaries, the defendant moved to suppress the admission of the contents of the cardboard box and trunk and his statements. Following a hearing, the circuit court granted the motion, finding that while Officér Borneman had reasonable and articulable suspicions justifying a Terry “stop and frisk” of the defendant when he had returned to his car after fleeing, the officer had no probable cause to arrest or fully search the defendant. By effecting a full custodial arrest of the defendant without first having probable cause, the officer seized the items in violation of the defendant’s fourth and fourteenth amendment rights. The court also suppressed the statements made as fruits of the illegal arrest. The State argues on appeal that Officer Borneman had probable cause to arrest the defendant after seeing the defendant flee and after inspecting the open cardboard box. We agree and reverse the suppression order.

A full custodial arrest, such as the one in issue here, must be supported by probable cause to comport with the fourth and fourteenth amendments. The definition of probable cause is simple enough: the officer must have a reasonable belief that the arrestee has committed or is about to commit a criminal offense (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 2(1)(b)). Yet, because of the infinite variations in the circumstances surrounding encounters between citizenry and police, courts have not found this definition to be quite so simple in its application. Above all, however, the question of probable cause must be answered from the “nitty gritty” perspective of the law enforcement officer’s milieu, not from the hallowed cloisters of the trial or appellate bench. Accordingly then, the reasonableness of the decision to arrest must be a function of the totality of the circumstances which often requires the officer to take quick action; reasonableness for fourth amendment purposes depends not on technicalities but on probabilities.

Keeping this perspective firmly in the forefront, we conclude that the totality of the circumstances demonstrates a reasonable probability that the defendant had committed an offense when Officer Borneman made his arrest. The defendant was walking very late at night in an area with some businesses that had experienced several recent break ins. (See, e.g., People v. McGowan (1977), 45 Ill. App. 3d 61, 359 N.E.2d 220 (“Terry stop” upheld).) He carried a large unmarked box. After placing this box behind his car, he looked around apparently to ensure that no one was observing him. In doing so, he spotted the police car and ran, leaving the open box. After failing to apprehend the defendant, the officer looked in the box and found a tire iron of the kind often used as a pry bar, along with goods and merchandise. Given all these indicia we cannot say that Officer Borne-man lacked probable cause to arrest the defendant when he returned to his car. Contrary to the defendant’s argument, the arrest was not unlawful merely because the officer did not receive official acknowledgement that a crime had in fact taken place. Deliberately furtive actions in addition to flight at the sight of police officers can fairly be considered assertive conduct indicative of and incidental to criminal conduct. (Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889; People v. Addison (1977), 56 Ill. App. 3d 92, 371 N.E.2d 1025.) Moreover, the contents of the open box abandoned by the defendant corroborated the belief of the officer that the defendant had committed a crime. On top was a tire iron that easily could be, and often is, used for prying a door or window. Beneath the tire iron lay substantial quantities of goods and merchandise, a.paltry, but not unlikely, booty.

The defendant argues that, when viewed individually, each of his actions is capable of a construction consistent with innocence. First, his argument approaches, if not exceeds, the limits of credulity. Second, and more important, the totality of the circumstances known to the officer formed a convincing basis for the officer to have believed that the defendant had just committed a crime. His postulate of examining each circumstance individually is inappropriate for resolving a question of probable cause and should be saved for testing the sufficiency of the evidence following trial.

In support of our decision today, we find the recent decision in People v. Tribett (1981), 98 Ill. App. 3d 663, 424 N.E.2d 688, to be helpful. There officers observed the defendant run into an alley at the sight of their marked police car. They followed without knowing whether a crime had taken place. They spotted the defendant facing away from them and ordered him to turn around. After a second order, the defendant did turn, but kept his hand near his waist. Then the officers noticed that the defendant removed a small package from his waist and dropped it. He attempted to kick it, but the officers arrested him and retrieved the package, which was later found to contain heroin. The defendant attempted to suppress the evidence, claiming that the arrest was without probable cause. The reviewing court affirmed the order denying the motion to suppress, finding that based on the circumstances surrounding the defendant’s flight, the officers had reasonable, articulable suspicions to halt, but not arrest, the defendant. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; Ill. Rev. Stat. 1979, ch. 38, par. 107 — 14.) But, those suspicions, when coupled with the defendant’s attempts to dispose of the small package, gave the officers probable cause to arrest. Likewise, here Officer Bomeman had probable cause to arrest not upon the defendant’s flight, but after viewing the contents of the box. While we agree with the defendant that the goods contained therein hardly constituted contraband per se, the contents of the box taken in conjunction with the defendant’s suspicious nocturnal behavior formed the requisite basis for a lawful arrest.

Accordingly, we reverse the order of the circuit court of Peoria County granting the motion to suppress. Because the defendant has not been convicted, we deny the State’s request to assess costs of the appeal against the defendant. Ill. Rev. Stat. 1981, ch. 53, par. 8.

Reversed and remanded.

STOUDER and HEIPLE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH MOORE, Defendant-Appellant.
    Third District
    Nos. 82—59, 82—69 cons.
    Opinion filed October 19, 1982.

      Robert Agostinelli and Verlin R. E Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Kenneth Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant is before us on two separate, but related matters originally tried in the circuit court of Kankakee County. Chronologically, the first stems from a burglary on October 10, 1980. The defendant pleaded guilty to that charge, was convicted and was sentenced to four years’ probation on February 9, 1981. The second matter before us concerns charges of felony theft and burglary arising from an incident of May 23, 1981. After a jury trial, the defendant was found guilty of both offenses and sentenced to concurrent three and five years’ imprisonment respectively.

On January 22, 1982, the defendant was back in court on a petition to revoke his probation. Upon proof of the theft/burglary convictions, the court granted the State’s petition and sentenced the defendant to a six-year term of imprisonment to run concurrently with the three- and five-year terms imposed for the more recent convictions. On appeal, the defendant attacks his theft and burglary convictions as well as the order revoking his probation.

The relevant facts are, for the most part, undisputed. Around 11:30 p.m. of May 23, 1981, Jerry Williams drove up the alley to his home and observed the defendant standing at his back door. The two men were acquainted with each other and the defendant inquired of Williams whether he wanted to buy a couple of televisions. Williams said he was broke, thereby ending the conversation.

Williams’ suspicions were aroused, however, and he decided to leave the area and return within a few minutes and see what the defendant was up to. Williams was gone for about five minutes and then drove back down the alley, stopped the car and proceeded on foot toward his home.

He then observed that the kitchen light was on in the home of Willie Ann Smith, Williams’ next-door neighbor, who was away for the evening. The defendant then appeared, leaving Smith’s home by the back door and carrying a large object that looked like a stereo speaker. The defendant proceeded to the side of Smith’s home. Williams went to the kitchen window of his own home, tapped on the window and told his wife to phone the police. Williams then went into his home, leaving the defendant standing by the Smith home. The police arrived, took Williams’ statement and investigated the scene at Smith’s home.

The officers found a television set and two stereo speakers sitting at the side of Smith’s house. Willie Ann Smith returned to her home early the following morning. She observed that her basement window was broken and that her television and two stereo speakers had been removed from her home, which had been locked during her absence. Smith further observed that a picture frame, which contained a photograph of herself and her daughter, had been removed from her bedroom.

As a consequence of the officers’ investigation, an indictment was returned charging the defendant with felony theft (value in excess of $150) and burglary. The defendant was arrested, pleaded not guilty, and the cause proceeded to a jury trial.

In addition to the foregoing facts, the evidence adduced at trial disclosed that Smith had paid between $160 and $165 for the television set a year and a half prior to the burglary, and $300 for the speakers when they were purchased in August of 1980. Photographs of the items were admitted into evidence. Testimony further established that Jerry Williams reported to the police that the defendant had burglarized his home and taken a television and stereo. These items were not recovered, and Williams eventually recovered on them from his insurance company. Finally, the defendant introduced testimony showing that Williams was incarcerated as a result of a shooting incident subsequent to his report of the burglary at the Smith residence. According to a cellblock partner, when being served with a subpoena for the instant case, Williams indicated his displeasure with Joe Moore because of his alleged burglary of Williams’ home a year earlier.

At the conclusion of all evidence, the jury was instructed, retired to deliberate, and returned with verdicts of guilty on both the theft and burglary counts. Defendant’s conviction and sentence were ordered as aforesaid. On appeal, defendant raises four issues: (1) whether his conviction of felony theft must be reduced to misdemeanor theft because the State’s evidence was insufficient to prove that the fair market value of goods stolen exceeded $150 at the time of the offense; (2) whether the prosecutor’s reference to jailhouse violence was so prejudicial to the defendant as to warrant the granting of a new trial; (3) whether the prosecutor’s comment in closing argument — that the jury would be instructed not to consider the fact that the defendant did not testify — violated the defendant’s fifth amendment privilege against self-incrimination; and, finally, (4) whether the defendant’s probation revocation may stand depending upon our disposition of the foregoing issues.

In support of his first issue, defendant cites case law requiring that value be determined by fair market value as of the time and place of the theft. (People v. Briseno (1972), 2 Ill. App. 3d 814, 277 N.E.2d 743; People v. Brown (1976), 36 Ill. App. 3d 416, 343 N.E.2d 700.) The sole evidence respecting value in the instant case consisted of the testimony of Willie Ann Smith. Her testimony of cost and date of purchase, it is argued, is insufficient to establish market value at the time and place of the offense. We agree.

The State acknowledges that “fair cash market value” is the standard against which the stolen item(s) must be tested under section 16 — 1(e)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(3)). The State asserts, however, that original cost plus other proof, such as photographs and age of the items, suffices to establish the proper standard. Given such proof, the trier of fact can determine whether or not the fair cash market value of the item(s) exceeds $150. In this case, Willie Ann Smith testified that she “thought” the price of the speakers was $300 and she “guessed” that the portable television cost about $160-$165. The speakers were about 9 months old and the television, IV2 years. The black-and-white photographs of the items as they were found by the police outside of Smith’s home disclose nothing remarkable to enhance or diminish value.

Defendant’s point, which we believe is well taken, is that none of the evidence introduced by the State tended to establish whether the electronic items were even in working order. The items apparently had no value of any significance as furniture. Under the circumstances, failure to produce proof relating to quality or working condition is fatal to the State’s case. (See People v. Brown (1976), 36 Ill. App. 3d 416, 421, 343 N.E.2d 700, 703-04 (“although proof of cost alone is insufficient, cost together with other proof, relating to condition, quality and modernness or obsolescence, may afford the basis for a valid finding as to value”); People v. Parker (1968), 98 Ill. App. 2d 146, 240 N.E.2d 475 (victim’s testimony of auto’s cost 6 months prior to theft together with testimony of repair expenses incurred between purchase and theft held unsatisfactory as proof of value on date of theft).) No expert testimony was introduced in the instant case from which the jury could deduce a fair estimate of cash market value at the time and place of the offense. Cf. People v. Langston (1981), 96 Ill. App. 3d 48, 420 N.E.2d 1090; People v. Harden (1969), 42 Ill. 2d 301, 247 N.E.2d 404.

Having determined that the State’s proof of value cannot sustain the offense as charged, we must decide upon appropriate relief. The defendant requests that we reduce his conviction to misdemeanor theft (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(1)). The State asks merely that we affirm the felony conviction and sentence as determined by the trial court. We elect to do neither. The record before us, including the presentencing report, discloses that the defendant has prior convictions of retail theft from 1976 and 1979. Accordingly, we will and do reduce the degree of the theft offense from a Class 3 felony (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(3)) to a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(1)). See People v. Kelly (1965), 66 Ill. App. 2d 204, 214 N.E.2d 290.

The defendant’s second contention on appeal is that the prosecutor’s cross-examination of Buford Nance, a cellblock partner of the defendant, elicited evidence of criminal activity unrelated to the crime for which the defendant had been charged. The testimony established that Jerry Williams believed that the defendant had broken into his home and that, while both individuals were incarcerated, an act of jailhouse violence had occurred. The prosecutor did not specifically tie the defendant to the act of actual or threatened violence. However, it is defendant’s position that the clear inference had been made that Nance’s favorable testimony on behalf of the defendant resulted from Nance’s fear of being subjected to violence himself.

We note initially that the defense objected to the prosecutor’s reference to a recent act of violence in the jail. After a discussion with counsel outside the presence of the jury, the trial judge sustained the objection and admonished the jury to disregard the remark. While, as a practical matter, this may have done little if anything to erase the impression of prison violence in the minds of the jurors we do not find that the remark was prejudicial in this case. Here Williams’ eyewitness testimony of the crime along with evidence introduced by police investigators overwhelmingly support the jury’s findings of guilt.

Similarly, we are constrained to find that the prosecutor’s reference during closing argument to a defense tendered instruction — concerning the defendant’s failure to testify (IPI Criminal No. 2.04) — was not prejudicial here. Specifically, the prosecutor stated in his introduction to closing argument, “I’m going to talk in my brief statement here about some instructions. Now that doesn’t mean that some are more important than others. You read them all and you pay attention to them all.” At its conclusion, he stated, “Lastly on the defendant’s case you will be instructed that the fact that the defendant did not testify should not be considered by you in any way in arriving at your verdict. There are verdict forms ***.” Although not objected to at trial, the defense preserved the issue for purposes of appeal by including it in the post-trial motion for a new trial. Having read the record thoroughly, we are convinced that the prosecutor’s remark, in context, was not calculated to draw the jurors’ attention to the defendant’s exercise of his fifth amendment rights. People v. Evans (1979), 78 Ill. App. 3d 996, 398 N.E.2d 326.

In our opinion and given the overwhelming nature of the evidence against the defendant, the prosecutor’s remark, while certainly not condonable in any context, constituted harmless error. Accordingly, we affirm the defendant’s conviction and sentence for burglary.

Finally, we affirm the trial court’s order revoking the defendant’s probation for the 1980 offense and the sentence imposed. In sum, we affirm the defendant’s convictions of burglary and felony theft and the revocation of his probation, and we remand to the trial court solely for reconsideration of the defendant’s sentence for theft pursuant to section 5 — 8—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1), based on our reduction from a Class 3 to a Class 4 offense.

Affirmed; class of offense reduced; and remanded.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARVIL L. WATSON, Defendant-Appellant.
    Fourth District
    No. 4—82—0135
    Opinion filed October 13, 1982.

      Daniel D.Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas L. Brownfield, State’s Attorney, of Havana (Robert J. Biderman and Michael W. Hogan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Trial in absentia.

Guilty of burglary and theft.

Were the statutory admonitions given?

No.

We must reverse and remand.

Watson raises no question of the sufficiency of the evidence presented at his trial, so no extended recitation of those facts is necessary. But the enumeration of certain procedural occurrences are required to address his claim that he was improperly tried in absentia.

Watson was charged by information with burglary and theft and a warrant for his arrest was issued on June 4, 1981. He was arrested on June 11, but was released on June 15, after posting bond. His case was continued several times until preliminary hearing was held on August 20. There is some conflict in the record, but apparently Watson was not present at the hearing — although he was represented by retained counsel. The trial court nevertheless found probable cause and continued the case until October 22 for arraignment.

Watson did appear with his counsel at arraignment. He entered a plea of not guilty and requested a jury trial. The court accepted the plea and set the matter “for jury trial on the January jury call.” He was not, however, admonished of his rights at arraignment. A written order was entered by the court following arraignment and sent by regular mail to Watson which related that the case had been continued until January 11,1982, for jury trial.

On December 30, 1981, a pretrial conference was held. Watson’s counsel was present, but Watson was not. Following the conference, the court entered the following order, which was also sent by regular mail to the defendant:

“*** this case is hereby set for trial by jury, commencing on January 11, 1982, at 10:00 a.m., all parties, including the Defendant, are ordered to appear at that time for trial by jury. Failure of the Defendant to appear will result in the trial proceeding in his absence, and his case being tried' in absentia. ”

Defendant also failed to appear at his jury trial on January 11, 1982, but was again represented by counsel. After calling the roll of prospective jurors, the trial court advised them as follows:

“Ladies and gentlemen, we have a rather unique situation this morning. This matter called for trial, the defendant, Mr. Earvil Watson, although notified and although he has contacted his counsel, has not appeared this morning. His notice also advised him that if he did not appear that he would be tried in absentia. His counsel is present and it is his counsel’s obligation to protect his interest so we will proceed to this trial without the defendant being here. That is going to shorten things up considerably I expect.”

At no time before or during trial did defendant’s counsel object to trial in absentia. Nor did he file a post-trial motion.

There is no question that a criminal trial may be conducted in the defendant’s absence without violating his constitutional rights. (People v. Powell (1981), 95 Ill. App. 3d 93, 419 N.E.2d 708.) But the legislative scheme providing for trial in absentia is designed to insure that such a trial is not held unless defendant has made a valid waiver of his right to be present at trial and to confront witnesses against him.

To this end, section 113 — 4(e) of the Code of Criminal Procedure provides that at arraignment “or at any later court date on which he is present,” the court shall advise the defendant “that if he escapes from custody or is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence.” (Ill. Rev. Stat. 1981, ch. 38, par. 113— 4(e).) This warning was never personally given to Watson, although it was contained in a notice mailed to him.

Similarly, section 115 — 4.1(a) of the Code of Criminal Procedure requires that “when the defendant was not personally present in open court at the time the case was set for trial” he must be sent notice of the date “by certified mail at his last known address indicated on his bond slip.” (Ill. Rev. Stat. 1981, ch. 38, par. 115-4.1(a).) The trial court’s statement at Watson’s arraignment that the case was “set for jury trial on the January jury call” was insufficient to set the date in open court in defendant’s presence. Defendant was apparently mailed two notices of his specific January 11, 1982, trial date, but those were not sent by certified mail, and there is nothing in the record to confirm that defendant received them.

Nor is the fact that defendant’s counsel had notice sufficient. The statute clearly requires more. We thus decline to follow the contrary holding of People v. Clark (1981), 96 Ill. App. 3d 491, 421 N.E.2d 590. Clark ignores the fact that section 115 — 4.1(a) requires notice by certified mail and emasculates the clear statutory protections.

Perhaps the most important safeguard against unconstitutional trial in absentia is the requirement in section 115 — 4.1(a) that the trial may proceed in defendant’s absence only where the State has so requested and has proven by substantial evidence that defendant is wilfully avoiding trial. There is no indication in this record that the State made such a request or that it produced any evidence of wilfulness. The State, as Powell notes, has the burden of proving a negative here. Rather than require the State to negate every possibility that a defendant’s absence was not wilful, we hold that a prima facie case is established by showing that the statutory requirements have been complied with. Only if the defendant introduces some evidence that he did not act wilfully should more be required of the State. See Clark; Powell; People v. Davis (1979), 69 Ill. App. 3d 548, 388 N.E.2d 167.

The State did not meet this burden. On the contrary, the only way defendant can be said to have known of his trial date and the consequences of his failure to appear is if the knowledge of his counsel is imputed to him. We decline to do so because such a holding would amount to ruling that trial in absentia is proper whenever defendant is represented by counsel.

Powell does not compel a contrary result. Powell did hold that it was not an abuse of discretion to try a defendant in absentia without receiving evidence on the question of whether defendant’s absence was wilful. However, in Powell there were representations by counsel as to what the evidence would show — including defense counsel’s indication that defendant knew his trial date. No such representations appear of record in this case. Watson’s knowledge of the trial date cannot be inferred from the mere fact that he had contacted his counsel.

The failure to comply with the prerequisites for trial in absentia is perhaps understandable. The provision is, fortunately, seldom necessary. It is very rare, indeed, that a defendant fails to appear for trial, and the issue normally fades into oblivion. The statute in its present form is of fairly recent vintage — becoming effective September 1, 1979— and its requirements are somewhat intricate. However, this does not lessen the impact of improper trial in absentia on a defendant. Courts should abhor trial in absentia because of its inherent unfairness to a defendant. (People v. Zielinski (1979), 77 Ill. App. 3d 157, 395 N.E.2d 1020.) The error here was thus plain error and we consider it under Supreme Court Rule 615(a), even though it was not properly preserved below. (73 Ill. 2d R. 615(a).) See also People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

Because of our decision on this issue, we need not consider defendant’s contention that he was denied effective assistance of counsel.

Reversed and remanded.

GREEN, P.J., and LEWIS, J., concur.


author: JUSTICE LONDRIGAN

text:
    JUDITH GUSTAFSON, Guardian of the Estate of Stephanie Gustafson, a Minor, et al., Plaintiffs-Appellants, v. JACK MATHEWS, Adm’r of the Estate of Frederick W. Gustafson, Sr., Deceased, et al., Defendants.—(Douglas A. Reining, d/b/a Speakeasy, et al., Defendants-Appellees.)
    Fourth District
    No. 4—82—0126
    Opinion filed October 18, 1982.

      David E. Robinson, of Jacksonville, for appellants.
    Richard Collins, of Rammelkamp, Bradney, Hall, Dahman, Kuster & Collins, of Jacksonville, for appellee Plantation Supper Club, Inc.
    Raymond J. Conklin, of Rock Island, for appellee Douglas A. Reining.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Frederick W. Gustafson, Sr., and four of his children were killed when the car they were riding in collided with a truck; a fifth child was injured seriously. Gustafson’s widow filed suit in her own behalf, as guardian of the surviving child, and as administrator of the other four children’s estates, naming as defendants her husband’s estate, the truck driver’s employer, and the owners of two taverns that Gustafson had visited before the accident. That portion of the amended complaint involved in this appeal seeks recovery from the taverns and relies on theories of common law negligence. The plaintiffs appeal the trial court’s order dismissing the counts against the taverns and disallowing proposed additional amendments to them; we agree with the trial court that the counts and amendments fail to state a cause of action and affirm its decision.

Counts XXXI through XL of the amended complaint, which are against defendant Reining, counts XLI through L, which are against defendant Plantation Supper Club, Inc., and the proposed additional amendments seek to impose liability on the tavern owners because their employees helped the obviously impaired Gustafson into a car containing children and because the employees did not prevent Gustafson from driving away. This is not a dramshop action; counts against the two taverns based on the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135) were dismissed as untimely because they had not been brought within the one-year period for bringing dramshop actions (Gustafson v. Reining (1981), 95 Ill. App. 3d 1204, 424 N.E.2d 1389 (Rule 23 order)).

The amended complaint and proposed additions allege similar facts against both tavern owners and do not specify which tavern Gustafson visited last. According to the complaint and additions, late in the evening of June 25, 1978, or early the following morning, “after having already consumed a considerable amount of intoxicating liquor,” Gustafson drove to the defendants’ taverns with his five children, who were from 4 to 14 years old. He parked in the defendants’ lots and went into each tavern for a time. At the conclusion of each visit Gustafson was escorted out of the tavern and to his car by that defendant’s employees, who supported him and helped him into the car; the five children were in the car and visible to the employees. At these times Gustafson was:

“quarrelsome, disorderly, vicious, violent, incoherent, uncoordinated and otherwise obviously physically impaired, and was acting with reckless disregard for the safety of himself and all persons around him, all in such manner and to such extent that he was obviously unable safely to operate a motor vehicle.”

The complaint and additions also allege that the defendants should have known that Gustafson would drive away from the taverns, posing a threat to the children’s safety, and that the children would be unable to leave the car. Each of the defendant tavern owners is charged with two acts of negligence:

“(a) It encouraged and aided the said FREDERICK W. GUSTAFSON, SR., in entering and placing in motion the aforesaid automobile in which the aforesaid children were passengers.
(b) It failed to restrain, or to call the police or other law enforcement officers to restrain, FREDERICK W. GUSTAFSON, SR., from placing the aforesaid automobile in motion and leaving the aforesaid parking lot, while said children were passengers.”

The tavern owners deny that they had the duties proposed by the plaintiffs and also argue that any breach of a duty did not proximately cause the collision and that the complaint is a dramshop action in disguise.

The plaintiffs base their argument on the common law duty of possessors of land who hold it open to the public and of innkeepers to protect invitees from foreseeable dangers caused by conditions or persons on the premises. (Restatement (Second) of Torts secs. 314A, 344 (1965).) The defendant taverns had that duty (Hayes v. O’Donnell (1979), 76 Ill. App. 3d 695, 395 N.E.2d 184; Lessner v. Hurtt (1977), 55 Ill. App. 3d 195, 371 N.E.2d 125), and we agree with the plaintiffs that the children were invitees while they were in the taverns’ parking lots, for they had accompanied their father to the businesses. (See Stankowitz v. Goldblatt Bros. (1963), 43 Ill. App. 2d 173, 193 N.E.2d 97.) In Hayes and Lessner taverns were found liable for failing to protect patrons from the acts of belligerent third persons. The plaintiffs argue that the facts here are analogous: the children were patrons and were injured by the defendants’ failures to prevent Gustafson from gaining control of a dangerous instrumentality, his car.

Foreseeability is a necessary but not a sufficient condition for imposing a duty. In Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233, the court said:

“After the event, hindsight makes every occurrence foreseeable, but whether the law imposes a duty does not depend upon foreseeability alone. The likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant, must also be taken into account.”

Although the defendants could have foreseen that Gustafson’s condition might threaten his children’s safety, the other elements in the Lance formula militate against imposing the duty proposed here. To avoid denomination of this complaint as a dramshop action, the duty must stem from the defendants’ status as possessors of land who invite the public to their businesses and not from their status as taverns. This duty would therefore apply to all businesses that maintain parking lots and would require them to evaluate the behavior of their customers to determine whether they have the capacity to drive safely. This is an unjustifiably burdensome responsibility and should not be imposed in the absence of some further relationship between the customer and the business.

Under the plaintiffs’ theory this duty would extend beyond the perimeter of a business’s parking lot, and as support for this argument they cite several cases finding possessors of land liable for harms incurred off the premises but caused by projectiles coming from the land (Feeney v. Mehlinger (1917), 136 Minn. 42, 161 N.W. 220 (patron ejected from tavern onto plaintiff); Stevens v. City of Pittsburgh (1938), 329 Pa. 496, 198 A. 655 (plaintiff’s decedent killed by errant bullet fired in public park known by city to be used as area for target practice); Honaman v. City of Philadelphia (1936), 322 Pa. 535, 185 A. 750 (plaintiff struck by baseball coming from city playing field)). The plaintiffs argue that because the children could not get out of the car after it left the taverns, the harm to them began to occur while they were still on the premises; like the body, bullet, and baseball, the car was set in motion on the premises and followed its course until the collision.

Those cases are distinguishable, for the injuries there resulted from activities occurring on the defendants’ property; the injuries here can be related to the land only by transforming the complaint into a dramshop action.

The plaintiffs also argue that by helping Gustafson into his car the defendants’ employees assumed a duty to the children, which they violated (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769). The extent of the undertaking defines the scope of the duty (Phillips v. Chicago Housing Authority (1982), 89 Ill. 2d 122, 431 N.E.2d 1038; Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596), and the employees’ responsibility and undertaking ended when they deposited Gustafson in his car safely.

We therefore hold that the defendant taverns did not have a duty to prevent Gustafson from driving away and the scope of the duty created by an employee’s assisting an incapacitated patron into his car does not include the patron’s later acts off the premises. Given the basis for our decision, we need not address the defendants’ alternative arguments.

Affirmed.

GREEN, P.J., and WEBBER, J., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUBEN FRIAS, Defendant-Appellant.
    First District (5th Division)
    No. 81—1946
    Opinion filed October 15, 1982.

      James J. Doherty, Public Defender, of Chicago (Andrea D. Lyon, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond F. Bogan, and Barbara A. Levin, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Following a jury trial, defendant was acquitted of murder but found guilty of armed violence based on the felony of murder and was sentenced to 15 years imprisonment. On appeal, he contends that (1) his conviction for armed violence cannot stand where he was acquitted of the predicate felony of murder; (2) the prosecutor’s improper and prejudicial arguments and trial behavior violated his right to a fair trial; (3) he was not proved guilty beyond a reasonable doubt; (4) the denial of his pretrial motion to suppress the identification testimony of several witnesses was error; and (5) his cross-examination of one of the State’s witnesses was improperly restricted.

Defendant moved to suppress the identification testimony of Edwin Padua, Noel Castro, James Malugin and Jose Morales, and at the hearing on the motion Noel Castro testified that all four of them were seated together in the back of a police squad car on November 12, 1979, when they were shown an array of 20 photographs depicting multiple shots of six or seven different people; that the four potential witnesses passed the pictures among themselves and discussed them; that he heard two individuals discussing one of the men portrayed but did not know who they were talking about; that he identified one of the pictures as that of the man he saw shoot Alfredo Torres on November 8; and that later that same day he was taken to the police station to view a lineup and again identified the man he saw on November 8. Castro admitted that the police did not tell him who to pick out at the photodisplay or at the lineup.

Investigator Wieclawek testified that he picked up Padua, Castro, Malugin and Morales on the morning of November 12, 1979, for the purpose of showing them photographs; that each individual was shown the group of photographs separately and independently identified defendant as one of the men involved in the November 8 shooting; that neither he nor his partner told any of the individuals who to pick out; and that later these same persons separately viewed a lineup and again identified defendant. He later admitted that Castro viewed the photographs in the presence of the other three individuals, but that the others did not say anything while Castro viewed the pictures and identified defendant; and that he (Wieclawek) knew that defendant was in custody at the time the photograph display took place. The court found that “any possible suggestiveness or impropriety in the photographic identification procedures could not have resulted in irreparable misidentification” and denied defendant’s motion.

At trial, Hilea Torres testified that on the evening of November 8, 1979, her son Alfredo Torres left their home to move his car which was parked on the street; that after he left, she heard shots and ran outside where she saw Alfredo lying wounded in the street; and that he subsequently died in a hospital.

Jose Morales testified that he was visiting friends at the Kents street gang hangout two houses from the Torres home on the night of the shooting; that he saw Torres emerge from his house and walk around the front of his car; that although it was dark, the street was illuminated and he was able to see two men run up to Torres and begin shooting; that when the shooting started, he (Morales) crouched behind a car but was able to see what happened through the car’s windshield; that the first man, whom he could not identify, shot Torres several times and then fled; that the second man began shooting after the first one left, then turned toward him (Morales), so that he was able to see the man’s face; that he was shown pictures the day after the shooting and identified the man he had seen; that he was taken to a lineup two days later and again made an identification; and that defendant was the man he saw at the scene and subsequently identified. Morales further testified that he was four houses away from where the shooting occurred; that the entire incident took less than a minute, during which time he was only able to see defendant’s profile for 3 to 4 seconds; and that he could not describe defendant’s individual features.

James Malugin testified that on November 8, 1979, he was on the street near the Kents gang clubhouse; that the street was illuminated by new, orange street lights; that he saw Alfredo Torres get out of his car and begin to walk around it; that at that moment, two men emerged from a gangway across the street and ran toward Torres, shooting at him; that he (Malugin) crouched down when the shooting started but was still able to observe what happened; that defendant was one of the men who shot Torres; that he had seen defendant on several occasions before the shooting and knew him to be a member of the Disciples street gang, rivals of the Kents, to which he (Malugin) belonged; and that he had also identified defendant from a photo display and in a lineup. Malugin further testified that he was four or five houses away when the shooting occurred; and that the two men did not shoot at the same time, but one after the other.

Officer Gonzalez testified for the defense that upon arriving at the scene, he picked up a Mr. Ramero and drove him to a nearby tavern where he (Gonzalez) took Sammy Lopez and Adam Lazano into custody in connection with the Torres shooting. Gonzalez admitted that he did not know whether charges were ever approved against Lopez and Lazano.

Assistant State’s Attorney James Linn testified in rebuttal that no murder charges were ever brought against Lopez and Lazano because there was insufficient evidence to connect them with the homicide.

Opinion

We first consider defendant’s contention that his conviction for armed violence cannot stand where he was acquitted of the predicate felony of murder. Defendant argues that since he was acquitted of one of the elements of armed violence, the predicate felony, the State has not met its burden of proving all elements of the offense beyond a reasonable doubt. Therefore, he reasons, his armed violence conviction must be reversed.

The State, in its brief and argument here, treats this issue as a question of inconsistent verdicts and argues that Illinois law requires neither logical nor legal consistency in jury verdicts. In particular, the State relies on our decision in People v. Johnson (1980), 87 Ill. App. 3d 306, 409 N.E.2d 48, where defendant contended that his aggravated battery conviction could not stand because it was legally inconsistent with his acquittal for armed violence. We found that the verdicts were not legally inconsistent, and we went on to note that, even assuming legal inconsistency, Illinois did not require consistency, either legal or logical, in jury verdicts.

We believe, however, that Johnson is distinguishable because in the case before us defendant was acquitted of murder which, being the predicate felony, was an essential element required to be proved by the State in order to sustain a conviction. (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2; People v. Green (1980), 83 Ill. App. 3d 982, 404 N.E.2d 930.) Neither party has cited, nor has our own research discovered, any Illinois case in which a jury has returned a verdict of guilty of armed violence while at the same time acquitting the defendant of the underlying felony. However, this issue has arisen in another jurisdiction.

In Redondo v. State (Fla. 1980), 403 So. 2d 954, a defendant was charged with aggravated battery and the unlawful possession of a firearm while engaged in the commission of a felony. A jury found that defendant guilty of the firearm offense, but effectively acquitted him of the aggravated battery charge by returning a verdict of guilty on the lesser included offense of simple battery, a misdemeanor. The trial court’s arrest of judgment of conviction on the possession of a firearm had been reversed by the appellate court on the ground that juries may return inconsistent verdicts in criminal cases. (Redondo v. State (Fla. App. 1980), 380 So. 2d 1107.) The supreme court reversed, stating:

“The existence of a felony or an attempted felony is an essential element of the crime of unlawful possession of a firearm during the commission of a felony. [Citation.] Therefore, petitioner may not be convicted of that crime. A conviction for unlawful possession of a firearm during the commission of a felony must stand or fall in conjunction with the underlying felony” 403 So. 2d 954, 956.

We find the reasoning of the Florida Supreme Court persuasive, particularly in the light of our recent decision in In re Sanders (1980), 81 Ill. App. 3d 843, 401 N.E.2d 1118. In that case, a petition for adjudication of wardship was filed against a juvenile offender, charging him with attempted armed robbery, murder, and felony murder predicated on attempted armed robbery. The trial court entered a finding of delinquency on the felony murder charge, but found for the juvenile on the murder and attempted armed robbery charges. This court reversed because, in view of the findings for the juvenile, the finding against him on felony murder could not “as a matter of law *** have been based upon proof beyond a reasonable doubt.” 81 Ill. App. 3d 843, 849, 401 N.E.2d 1118, 1122.

While the holding in Sanders centered on the legal inconsistency of the trial court’s ruling, we also noted that its findings were not justified for the further reason, quoting with approval the dissenting opinion in People v. Dawson (1974), 19 Ill. App. 3d 150, 160, 310 N.E.2d 800, 807, rev’d (1975), 60 Ill. 2d 278, 326 N.E.2d 755, that:

“ ‘If the jury in this case had found the defendant not guilty of armed robbery and guilty on the felony murder count, a conviction on that count could not stand for the very simple reason that a felony murder conviction cannot be sustained if no felony was committed.’ ” In re Sanders (1980), 81 Ill. App. 3d 843, 850, 401 N.E.2d 1118, 1123.

As Redondo and our own analysis in Sanders indicate, the problem is more than one of inconsistency, for in both cases State law did not require either logical or legal consistency in jury verdicts. Rather, each case focused on the relationship between the crimes charged and reasoned that where the crime for which the defendant was acquitted was one of the essential elements of the crime for which he was convicted, reversal was mandated because the acquittal raised a reasonable doubt as to defendant’s guilt. Further support for this view appears in People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, where the court stated that the armed violence statute cannot be violated without first committing a felony, for “the legislature intended only to increase or enhance the minimum penalty upon conviction of a felony when the violator was in possession of a dangerous weapon while committing the felony.” 91 Ill. 2d 164, 168, 435 N.E.2d 477, 478.

In the instant case, while the armed violence charge could have been based on another felony, such as aggravated battery, the predicate offense clearly specified in the armed violence instruction was murder, with no instruction given as to any other felony. The jury determined that defendant had not committed the offense of murder, and since a conviction for armed violence cannot be sustained if defendant did not commit the underlying felony, defendant’s acquittal of murder requires reversal of his conviction for armed violence predicated on murder.

Moreover, defendant’s acquittal also precludes a new trial. The Illinois Constitution bars retrial of the murder count. (Ill. Const. 1970, art. VI, sec. 6 (there can be no appeal from a judgment of acquittal in a criminal case following a jury trial on the merits).) In addition, a retrial on the armed violence charge would again raise the factual issue of defendant’s guilt on the murder charge, and we have held that such a rehearing “violate[s] principles of collateral estoppel as embodied in the Fifth Amendment to the United State Constitution.” In re Sanders (1980), 81 Ill. App. 3d 843, 850, 401 N.E.2d 1118, 1123.

Since we have disposed of this appeal on the first issue, we need not consider defendant’s remaining contentions. For the reasons stated, defendant’s conviction of armed violence based on the underlying felony of murder is reversed.

Reversed.

MEJDA and WILSON, JJ., concur.


author: JUSTICE LORENZ

text:
    THE BOARD OF TRUSTEES OF THE VILLAGE OF ROSEMONT, COOK COUNTY et al., Plaintiffs-Appellants, v. RICHARD L. MATHIAS et al., Defendants-Appellees.
    First District (5th Division)
    No. 81—2276
    Opinion filed October 15, 1982.
    Ronald M. Glink and Peter M. Rosenthal, both of Ancel, Glink, Diamond, Murphy & Cope, P. C., of Chicago, for appellants.
    Tyrone C. Fahner, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

The board of trustees of the village of Rosemont filed a declaratory judgment action seeking, among other things, a declaration that the Director of the Department of Insurance erred in ordering the board to establish a firemen’s pension fund under article 4 of the Illinois Pension Code (Ill. Rev. Stat. 1975, ch. 108½, par. 4 — 101 et seq.).

A bench trial was held, and the court (a) entered judgment in favor of the Director, and (b) ordered the Rosemont board to establish an article 4 firemen’s pension fund. We reverse and remand for the reasons set forth below. But first, a brief statement of the material facts will aid in understanding the legal issues presented by the Board’s appeal.

On April 1, 1975, the village of Rosemont — a home rule unit of government under article 7, section 6(a) of the 1970 Illinois Constitution-held a referendum in which the municipal electorate exercised its statutorily granted authority to adopt articles 3 and 4 of the Pension Code. (See Ill. Rev. Stat. 1975, ch. 108½, pars. 3 — 145, 4 — 141.) By virtue of section 4 — 101 of article 4, a “municipality as defined in Section 4 — 103” is required to establish a pension fund for the benefit of “firemen as defined in Section 4 — 106.” Article 3, in contrast, pertains to police pension funds. Ill. Rev. Stat. 1975, ch. 108½, par. 3— 101.

On April 5, 1975 — four days after the village voters adopted article 4 — the Rosemont board of trustees enacted an ordinance which stated that it was abolishing the Rosemont fire department and transferring the employees of the abolished department to the Fire Section of a newly created Rosemont Public Safety Service. (Rosemont Ordinance 75 — 4—5A.) This was followed by an ordinance enacted on September 17, 1975, in which the. board of trustees created a unified Public Safety Department consisting of all the Rosemont police officers, the employees of the abolished fire department, and the village’s other public safety employees. (Rosemont Ordinance 75 — 9—17.) The new department includes detective, patrol, fire suppression, and paramedic sections, and all the department’s employees are designated as public safety officers. (Rosemont Ordinance 75 — 9—17.) The September 17 ordinance expressly contemplates that each of the public safety officers will “serve several public safety functions.” So, for example, the ordinance gives the new department the power to transfer public safety officers from one section to another, and all the department employees are given the job duties of enforcing the law (including making arrests) and extinguishing fires.

Under an amendment to article 4, effective October 1, 1975, the General Assembly (a) precluded home rule units of government from altering or amending the provisions of article 4 of the Pension Code, and (b) provided that a home rule unit which constitutes a “municipality, as defined in Section 4 — 103” of the Pension Code, is prohibited from providing a pension program for “firemen” other than through a fund which complies with the provisions of article 4. “An Act to add Sections 3 — 150 and 4 — 142 to the ‘Illinois Pension Code’ ***,” Pub. Act 79 — 988 (codified, in pertinent part, at Ill. Rev. Stat. 1975, ch. 108½, par. 4 — 142).

The Rosemont board of trustees eventually established a police pension fund under article 3 of the Pension Code. This fund covers all the employees of the Public Safety Department, a,nd the board has not established a separate firemen’s pension fund under article 4.

The Director of the Department of Insurance appointed a hearing officer to determine whether Rosemont violated the provisions of the Pension Code. The hearing officer concluded that the Rosemont board of trustees was obligated to establish both a police officer’s pension fund and a firemen’s pension fund because, by referendum, Rosemont had adopted both articles 3 and 4 of the Pension Code. The Director of the Department of Insurance followed the hearing officer’s recommendation and ordered the board of trustees to establish an article 4 pension fund in addition to the already established article 3 fund. See Ill. Rev. Stat. 1977, ch. 108½, par. 22 — 509.

In response, the board of trustees filed a declaratory judgment action which challenged the Director’s order on the grounds that the board’s home rule powers under the 1970 Constitution (Ill. Const. 1970, art. 7, sec. 6(a)) empowered it to supersede the pension law which had been adopted by referendum. The board also argued that the Director did not have authority to appoint a hearing officer to conduct a hearing on whether it had violated the provisions of the Pension Code.

The trial court viewed the controlling issue as being whether the board of trustees unlawfully thwarted the results of the April 1, 1975, municipal referendum. And, despite the fact that Rosemont is a home rule unit of local government, the trial court concluded that the board of trustees unlawfully defeated the will of its electorate by attempting to avoid application of a law which was adopted by municipal referendum.

Opinion

Before the enactment of the 1970 Illinois Constitution, the powers of units of local government were limited to what was specifically authorized by the General Assembly or the 1870 Constitution. (Ill. Ann. Stat., 1970 Const., art. 7, sec. 6, Constitutional Commentary, at 22 (Smith-Hurd 1971).) The 1970 Illinois Constitution “drastically altered] the relationship which previously existed between local and State government” (Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166, 290 N.E.2d 240, 243) by providing that “[ejxcept as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs ***.” Ill. Const. 1970, art. 7, sec. 6(a).

In matters concerning their government and affairs, “Home rule units *** have the same powers as the sovereign except where such powers are limited by the General Assembly” (City of Urbana v. Houser (1977), 67 Ill. 2d 268, 273, 367 N.E.2d 692, 694) or by section 6 itself (e.g., Ill. Const. 1970, art. 7, secs. 6(d), (e)). Accordingly, an ordinance enacted by a home rule unit supersedes a conflicting statute which was enacted before the effective date of the 1970 Constitution. (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 513, 389 N.E.2d 553, 559; Paglini v. Police Board (1975), 61 Ill. 2d 233, 235, 335 N.E.2d 480, 482.) Furthermore, a statute enacted after the effective date of the 1970 Constitution does not restrict the home rule power unless it falls within one of the article 7, section 6 preemption provisions. See, e.g., Ill. Const. 1970, art. 7, secs. 6(g), (h), and (i); see also Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 528, 343 N.E.2d 919, 923 (“A statute intended to limit or deny home rule powers must contain an express statement to that effect”).

In the present case, the board of trustees argues that the municipal referendum which adopted article 4 of the Pension Code was superseded by the inconsistent home rule ordinances which it enacted after the April 1975 referendum, but before October 1, 1975, when Public Act 79 — 988 (codified, in pertinent part, at Ill. Rev. Stat. 1975, ch. 108½, par. 4 — 142) became effective.

The Rosemont board does not dispute that this amendatory law prospectively preempted its home rule powers. The initial question, therefore, is whether — before October 1, 1975 — the board of trustees could use its home rule powers to supersede the referendum which adopted article 4 of the Pension Code. We note, preliminarily, that the Director of the Department of Insurance does not contend that the General Assembly preempted the board’s home rule powers before October 1, 1975. And the Director does not assert that the legislature intended that section 4 — 142 should be retroactively applied. Furthermore, the Director does not dispute that municipal pensions concern the government and affairs of home rule units.

Instead, despite the fact that a majority of the Illinois citizens voting on the question ratified the 1970 Constitution — including the home rule provision — the Director claims that it would “abrogate] the very core of democracy — the electoral process” if the Rosemont board of trustees could “totally ignore and avoid the effect of a referendum” by subsequently passing an inconsistent ordinance. However, the only case cited by the Director in support of this argument, Routt v. Barrett (1947), 396 Ill. 322, 71 N.E.2d 660, is irrelevant because (1) it preceded the enactment of the home rule provision in the 1970 Constitution, and (2) it concerns a provision in the 1870 Constitution which expressly provided that certain laws (concerning public debts) had to be enacted by referendum, and could not be repealed by the legislature. (Ill. Const. 1870, art. 4, sec. 18.) We further find that the Director misperceives the relationship between home rule ordinances and provisions which are adopted by local referendum.

When the legislature has authority to directly enact a particular law, but it nevertheless provides that the law may be adopted by referendum, then — in the absence of a conflicting constitutional provision — the law thereby adopted “is still the act of the legislature, and is subject to repeal or amendment by that body in the same way as any other statute.” (Waugh v. Glos (1910), 246 Ill. 604, 607, 92 N.E. 974, 976; see also Culver v. Waters (1910), 248 Ill. 163, 168, 93 N.E. 747, 749 (“The fact that the original act was adopted by a vote of the people does not require that every amendment made by the legislature must also be submitted to the people for their approval”).) Illinois, therefore, follows the general rule that:

“In jurisdictions where the initiative and referendum procedures exist, measures adopted by those procedures have the same status as ordinary acts of the legislature except where the constitution accords them a special position in the legal hierarchy by exempting them from amendment or repeal except by means of special procedures. Therefore, the rules applicable to repeals pertain to laws conceived by the initiative process or formally executed by the referendum process and both kinds of laws can repeal other prior statutes, or be repealed by subsequent legislation.” 1A A. Sutherland, Statutory Construction sec. 23.23, at 263 (4th ed. 1972); accord, Annot., Power of Legislative Body to Amend, Repeal, or Abrogate Initiative or Referendum Measure ***, 33 A.L.R. 2d 1118, 1121 (1954).

The referendum which is the subject of the present controversy was authorized by section 4 — 141 of the Illinois Pension Code, a law which was approved, and became effective, in 1963. (1963 Ill. Laws 2442.) Questions concerning legislative preemption of home rule powers “were totally foreign in the contemplation of legislation adopted prior to the 1970 constitution” (Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166-67, 290 N.E.2d 240, 243-44), and the legislature could not have intended — in 1963 — to preclude home rule Units from exercising powers which did not exist until years later when the citizens of Illinois ratified the 1970 Constitution.

In light of Rosemont’s home rule power to supersede inconsistent statutes which were not enacted under one of the preemption provisions of article 7, section 6, of the 1970 Constitution, it is clear that the municipal referendum authorized by section 4 — 141 of the Pension Code resulted in a law which was (before October 1, 1975) on the same footing as any nonpreemptive statute enacted by the legislature. Therefore, prior to October 1, 1975, the effective date of Public Act 79 — 988 (codified, in pertinent part, at Ill. Rev. Stat. 1975, ch. 108½, par. 4 — 142), the Rosemont board of trustees could validly supersede the law which was previously adopted through the municipal referendum authorized by section 4 — 141.

The Director correctly points out, however, that in addition to prospectively preempting the power of home rule units to alter or amend the provisions of article 4 of the Pension Code, section 4 — 142 also provides that no “home rule unit which is a municipality, as defined in Section 4 — 103” shall provide pension benefits to firemen in any manner other than a fund which complies with the provisions of article 4. Thus, the Director contends that — as of its October 1, 1975, effective date — the second clause of section 4 — 142 required Rosemont to establish an article 4 firemen’s pension fund.

The factual predicate for this conclusion, however, is the Director’s assumption that when section 4 — 142 became effective on October 1, 1975, (1) Rosemont was “a municipality, as defined in Section 4 — 103” (Ill. Rev. Stat. 1975, ch. 108½, par. 4 — 142), and (2) that Rosemont continued to employ “firemen” as that term is defined in section 4 — 106.

The significance of these provisions in determining whether Rosemont must establish an article 4 pension fund becomes apparent upon careful examination of article 4.

Section 4 — 101 requires “each municipality as defined in Section 4 — 103” (Ill. Rev. Stat. 1975, ch. 108½, par. 4 — 101) to establish an article 4 firemen's pension fund. But the relevant clause of section 4— 103 defines “municipality” as “[a]ny *** city, village, incorporated town or township of less than 5,000 inhabitants [i.e., Rosemont] having a full-time paid fire department which adopts the provisions of this article pursuant to the provisions of Section 4 — 141.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 108½, par. 4 — 103.) Thus, for example, if Rosemont did not have a “fire department” on October 1, 1975, then neither sections 4 — 103 nor 4 — 142 would apply to the village or require it to establish an article 4 fund.

Furthermore, sections 4 — 142 and 4 — 101 deal with pensions for “firemen,” and Rosemont asserts that by September 1975 it did not employ any “firemen” as that term is used in section 4 — 106. Relevant portions of section 4 — 106 define “fireman” as someone who is classified as a fireman by the municipal civil service commission (Ill. Rev. Stat. 1975, ch. 108½, par. 4 — 106(b)) or anyone who has been “appointed to any full-time position in the fire department or service of such municipality.” (Ill. Rev. Stat. 1975, ch. 108½, par. 4 — 106(c).) So, if Rosemont’s public safety officers are not “firemen” within the statutory definition, then sections 4 — 142 and 4 — 101 would not require Rosemont to establish a firemen’s pension fund.

The trial court in the present case did not reach these factual issues because it based its ruling on its conclusion concerning Rosemont’s power to supersede laws adopted by referendum. We therefore must remand to the trial court so that it can address the questions raised by Rosemont’s allegations that it did not have — within the meaning of the statutory definitions — a fire department or any firemen when the preemption statute became effective.

Finally, we note that the legislative debate on the bill which became section 4 — 142 shows that the purpose of preempting this area from the jurisdiction of home rule units was to insure that Illinois firemen would receive uniform pension benefits. It may well be that the provisions of article 4 do not apply to Rosemont’s Public Safety Department and its alleged hybrid classification of police officer/firefighter. If that is the case, then only the legislature can act to insure uniformity in the pension benefits provided to such employees throughout the State.

For the preceding reasons, the judgment of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

MEJDA and WILSON, JJ., concur.