author: Mr. JUSTICE VAN DEUSEN

text:
    MARY L. SULLIVAN, Plaintiff-Appellee, v. PETER C. BACH, Defendant-Appellant.
    Second District
    No. 81-76
    Opinion filed October 16, 1981.

      John J. Piccione and Patrick C. Keeley, both of John J. Piccione & Associates, of Wheaton, for appellant.
    Law Offices of Daniel W. Burke, of Lombard, for appellee.
   Mr. JUSTICE VAN DEUSEN

delivered the opinion of the court:

On May 16, 1979, the circuit court of Du Page County entered an ex parte judgment for $20,000, plus costs, against the defendant Peter C. Bach in a personal injury case. Defendant unsuccessfully sought to have the judgment set' aside on the grounds that the judgment was void because the trial court lacked personal jurisdiction over him. This is the basis on which he appeals.

The facts of this case are somewhat unusual. On January 3, 1979, the plaintiff filed a complaint against the defendant for personal injuries arising out of an automobile collision that occurred November 19, 1978. Summons was issued on January 3,1979. The return of the deputy sheriff on the summons indicates that substitute service was had on the defendant Peter C. Bach on January 4, 1979, by serving “Sharon Bach (daughter)” at 433 Hillcrest Lane, Lombard, Illinois, and mailing a copy thereof to the defendant at the same address. There is no indication on the return as to the approximate age of Sharon Bach. On March 2, 1979, an order of default was entered against the defendant. A proveup was had on May 15, 1979, and judgment was entered against the defendant in the sum of $20,000, plus costs. On February 26, 1980, the defendant was served with a Citation to Discover Assets. On March 7, 1980, the defendant appeared personally at the citation proceedings, and he requested and obtained a continuance of the citation proceedings. On March 13, 1980, his counsel appeared, and the parties agreed to continue the hearing pending action by the defendant’s insurance carrier.

On April 30, 1980, the attorney for the defendant’s insurance carrier filed a general appearance on behalf of defendant and a section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) to vacate the judgment alleging a meritorious defense and excessiveness of the award.

On May 30, 1980, the defendant filed his first amended petition to vacate repeating the allegations of the original petition and adding the allegation that the court lacked personal jurisdiction over the defendant because the substitute service had on January 4, 1979, was improper in that Sharon Bach was neither related to the defendant nor a member of his household nor did the defendant reside at the address where service had purportedly been had. This petition was accompanied by defendant’s affidavit asserting the same facts.

On July 17, 1980, a hearing was had on the defendant’s motion to vacate, and the court denied the motion but granted defendant 21 days to file an amended petition to vacate.

On August 7,1980, the defendant filed a second amended petition to vacate limited to a claim that the court lacked personal jurisdiction over the defendant. This petition alleged factually that on January 4, 1979, the residence of the defendant was at 1120 S. Edgewood, Lombard, Illinois. The petition further alleged that on January 4, 1979, and at all times pertinent to this action there existed no such person as “Sharon Bach” who resided at 433 Hillcrest Lane, Lombard, Illinois, but that one Sharon Boland, age 10, did reside at that address, as did Carol Tur ano Bach, the defendant’s estranged wife. The defendant swore to the truth of the factual allegations in the petition.

An order denying this petition was entered on September 23,1980. In the order, the trial court found that since the defendant had entered a general appearance on April 30, 1980, he had waived any jurisdictional defenses and had submitted himself to the jurisdiction of the court. In addition to ruling on the matters before it at that time, the court’s order also said “defendant may still file a section 72 petition.”

On October 22, 1980, defendant filed a third amended petition to vacate the judgment. Count I, in substance, was a motion to reconsider the second amended petition to vacate, which was denied in the order of September 23, 1980. As an alternative, count II sought to have the judgment set aside pursuant to section 72 of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 72) and purportedly pled facts constituting a meritorious defense and due diligence.

On November 7, 1980, the trial court denied the petition on the following grounds. As to count I, the defendant’s filing of his general appearance on April 30,1980, was the filing of a general appearance prior to judgment within the meaning of section 20(1) of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 20(1)). Regarding count II, there was a want of due diligence required under section 72 of the Illinois Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) In response to a request by the plaintiff for a ruling, the trial court indicated that its order of September 23,1980, was not a final order. The court did provide in its order of November 7,1980, that it was a final order from which there was no reason to delay the enforcement or appeal.

On December 1, 1980, the defendant filed his notice of appeal. The defendant has limited his appeal to the trial court’s denial of his petition to vacate the judgment against him for want of personal jurisdiction.

We first consider the contention of the plaintiff-appellee, that the trial court orders of July 18, 1980, and September 23, 1980, were final orders from which the defendant was required to appeal.

Plaintiff is correct that ordinarily an order entered denying any relief prayed in a section 72 petition is appealable (In re Marriage of Kirk (1980), 85 ILl. App. 3d 805, 809; Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill. App. 3d 688, 689), and a party has 30 days from the denial of a section 72 petition in which to file notice of appeal (Kirk, at 809). In the instant case, the trial court denied the defendant’s first amended petition on July 18,1980, and the second amended petition on September 23, 1980. The plaintiff maintains that the defendant should have appealed those orders but did not do so. Where no timely appeal is taken from a final order, the appellate court is without jurisdiction to review it or to consider the propriety of any subsequent order vacating or upholding the original determination. Werth, at 690; In re Estate of Ireland (1971), 132 Ill. App. 2d 157, 160.

Further, the filing of a section 72 petition is not a substitute for a timely appeal (Werth Industries, Inc. v. Mid-America Management Co. (1973), 16 Ill. App. 3d 688, 690), and filing successive motions does not extend the time for appeal (In re Marriage of Kirk (1980), 85 Ill. App. 3d 805, 809). (See Deckard v. Joiner (1970), 44 Ill. 2d 412, 418-19, cert, denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232.) If the July 18, 1980, order denying the defendant’s petition to vacate the default judgment were a final order, the time for appeal of that order would not be extended by the filing of the second amended petition. (See Kirk, at 809.) Failure to appeal an order denying a petition to vacate precludes the filing of a second petition to vacate, and it is error for the trial court to entertain a second petition. (Werth, at 690.) Therefore, if the July 18, 1980, order had been a final order, defendant’s failure to appeal that order would have precluded consideration of any subsequent petitions. However, the July 18, 1980, order was not final and appealable because it provided the defendant 21 days in which to file an amended pleading. (Curtis v. Albion-Brown s Post 590 American Legion (1965), 65 Ill. App. 2d 473, 477, citing Vosnos v. Wenzel (1962), 35 Ill. App. 2d 390; see Rose v. Centralia Township High School District No. 200 (1978), 59 Ill. App. 3d 606, 607.) The defendant did file the second amended petition to vacate within 21 days.

Similarly, the order of the trial court denying the second amended petition on September 23,1980, would have been a final order except for the fact that the order provided that “defendant may still file a section 72 petition.” By providing in the order that defendant was given leave to file an amended petition, the order was not final and appealable. See Rose v. Centralia Township High School District No. 200 (1978), 59 Ill. App. 3d 606, 607.

The defendant filed his third amended petition on October 22, 1980. That petition was denied on November 7, 1980. There is no question that the order denying the third amended petition was final and, though not required nor determinative, the order itself states, “[t]his is a final order.” The defendant filed notice of appeal of the November 7, 1980, order on December 1,1980. We conclude that the denial of the defendant’s motion to vacate the default judgment taken against him was not final and appealable until November 7, 1980, and the defendant timely filed his appeal. See Bissett v. Gooch (1980), 87 Ill. App. 3d 1132, 1136.

Having determined that this court has jurisdiction to hear the appeal, we address its merits. The single issue raised by the defendant on appeal is that the trial court lacked personal jurisdiction over him and, therefore, the default judgment taken against him was void. He maintains that the service purportedly had upon him on January 4, 1979, was improper abode service.

Plaintiff’s counsel consistently argued in the trial court, and argues here, that defendant’s petition to vacate failed to support the allegation of improper abode service and that the evidence presented by way of affidavit failed to demonstrate the fact that the individual who received service of summons was either below the age of 13, contrary to statute, and/or that she was not a member of the defendant’s household. (Ill. Rev. Stat. 1979, ch. 110, par. J3,.2.) Such contention is without merit. The affidavit of the defendant Peter C. Bach in support of his petition to vacate standing alone would constitute competent evidence to support his contentions that he was not a resident on January 4, 1979, at 433 Hillcrest Lane, Lombard, Illinois, where service of summons was purportedly had and that no one named Sharon Bach resided at that address but an individual named Sharon Boland who was 10 years of age did reside at that address. See Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, 555-57.

Where personal jurisdiction is based on constructive service, strict compliance with every requirement of the statute must be shown. (Clinton Co. v. Eggleston (1979), 78 Ill. App. 3d 552, 555.) Unlike personal service, no presumption of validity of service arises from serving a member of defendant’s family at his usual place of abode. (Harris v. American Legion John T. Shelton Post No. 838 (1973), 12 Ill. App. 3d 235, 237.) When the return is challenged by affidavit and there are no counteraffidavits, the return itself is not even evidence and, absent testimony by the deputy, the affidavit must be taken as true and purported service of summons quashed. (First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 906; Harris.) Therefore, defendant’s Motion to Vacate, which plaintiff has not factually opposed, supports the defendant’s contention that the trial court did not have personal jurisdiction over him. Harris, 12 Ill. App. 3d 235; Chiaro v. Lemberis (1960), 28 Ill. App. 2d 164.

The critical and controlling issue in this case is whether the defendant’s actions subsequent to the default judgment constituted his voluntary submission to the trial court’s jurisdiction so as to validate the judgment. Almost a year .after the default judgment was entered, but prior to making any attack on it as void for lack of personal jurisdiction, the defendant sought a continuance of the citation proceedings, filed a general appearance on April 30, 1980, and filed a section 72 petition to vacate alleging only a meritorious defense and excessiveness of the award. In its November 7,1980, order the trial court found that the defendant’s general appearance on April 30, 1980, was “the filing of an appearance prior to judgment within the meaning of section 20 paragraph (1) chapter 110 Ill. Civil Practice Act” and that by entering this appearance the defendant had waived any jurisdictional argument and submitted himself to the personal jurisdiction of the trial court.

Insofar as the trial court found that the filing of the appearance on April 30, 1980, was an appearance prior to judgment within the meaning of section 20 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 20), we find its application of the statute to be incorrect. The default judgment in this matter was entered on May 15,1979. Any appearance or petition by the defendant was subsequent to the judgment. Section 20 states that any appearance prior to judgment that is not a special appearance is deemed a general appearance; it makes no reference to appearances filed subsequent to judgment.

In support of its position, the trial court had also relied on the case of Rock Island Bank & Trust Co. v. Stauduhar (1978), 59 Ill. App. 3d 892. That case is inapposite because there the defendant received and accepted a release of her obligations under the judgment that had been rendered without personal service, and the Stauduhar court found that she had, therefore, ratified the judgment. There is no similar set of circumstances in the case at bar; the defendant’s actions did not constitute ratification of the judgment.

Both jurisdiction of the person and jurisdiction of the subject matter must concur or the judgment will be void in any case in which the court has assumed to act, and it is therefore fundamental that subject matter or personal jurisdiction can be raised at any time either directly or collaterally. (Lebanon Trust & Savings Bk. v. Ray (1973), 10 Ill. App. 3d 345, 348.) Regarding appearances made prior to judgment, there is no doubt that under Illinois law a party challenging the personal jurisdiction of the court must limit his appearance solely to that purpose and that, where the party raises additional defenses, he has, in fact, entered a general appearance and submits himself to the court’s jurisdiction. (City of Chicago v. Bah (1968), 101 Ill. App. 2d 17.) Section 20(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 20(1)), cited by the trial court in the instant case, provides for such special appearance and makes clear that an appearance prior to judgment not so limited constitutes a general appearance.

Plaintiff contends that the same test should apply to appearances made for the first time subsequent to the entry of a judgment. She also maintains that, in addition to filing a general appearance, the defendant also submitted to the trial court’s jurisdiction by filing petitions to vacate the judgment pursuant to section 72 alleging the presence of a meritorious defense to the claim on the issue of liability and damages. A review of the case law in Illinois does indicate that opinions of this court are divided on this issue in cases where appearances and motions are made subsequent to judgment.

In Powers v. Powers (1964), 46 Ill. App. 2d 57, a First District case cited by the plaintiff, there is no distinction drawn between an appearance made prior to and subsequent to judgment. The case stands for the proposition that any appearance not strictly limited to contest jurisdiction and in any way appearing to the merits constitutes a general appearance for all purposes. We are also aware that the First District of this court has held in Community Bank & Trust Co. v. Pavlich (1980), 84 Ill. App. 3d 1080, that a defendant waived his jurisdictional argument, which attacked an order confirming a judgment by confession, and submitted himself to the jurisdiction of the court by not limiting his post-judgment appearance before the court to the narrow issue of service of process. In that case, the defendant requested and obtained two continuances of the citation proceedings and filed a motion to vacate the order confirming the judgment of confession alleging lack of personal jurisdiction but going on to also raise a meritorious defense and due diligence. The court found these actions subsequent to judgment went beyond a special appearance and constituted a general appearance.

Other First District cases, however, have held to the contrary. If the judgment was void when entered, it remains void notwithstanding subsequent general appearances (City of Chicago v. Bah (1968), 101 Ill. App. 2d 17), and a general appearance does not serve to retroactively validate a judgment void when entered. (Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 597; Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 586; City of Chicago v. Bah.) There is no need to file a special and limited appearance in challenging past jurisdiction unless one wishes to contest the court’s prospective jurisdiction as well. Francisco.

We have considered both lines of cases and find the view expressed by the latter group to be the better rule. Strict application of the rule on special appearances to prejudgment appearances still allows a defendant the opportunity to defend on the merits. Where the defendant is found to have voluntarily submitted himself to the court’s jurisdiction prior to judgment, the court has personal jurisdiction at the time it enters the judgment order, but the same logic serves only to submit a defendant to the court’s jurisdiction as of the date he appeared, not retroactively as of the date of the ex parte judgment, where his appearance comes after judgment is entered. (City of Chicago v. Bah (1968), 101 Ill. App. 2d 17.) A defendant’s attempts to set aside a void judgment subsequent to the entry of that judgment are not to be considered as giving the court original jurisdiction to enter the judgment; doing so deprives the defendant of his day in court. (Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 587, citing Sherrell v. Huber (1914), 186 Ill. App. 475, 478.) However, an appearance subsequent to judgment may be construed as submission to the court’s jurisdiction for retroactive validation of a prior judgment where the defendant acts to accept the benefits of the judgment. Rock Island Bank & Trust Co. v. Stauduhar (1978), 59 Ill. App. 3d 892, 902; Lord v. Hubert (1957), 12 Ill. 2d 83, 86.

While it is true that the defendant in this case filed a general appearance and also initially filed a petition under section 72 in which he asked the court to set aside the judgment on the basis that he had a meritorious defense and used diligence, it is evident that defendant had but a single purpose, to vacate the ex parte judgment against him, and the defendant did not, like the defendant in Rock Island Bank & Trust Co. v. Stauduhar (1978), 59 Ill. App. 3d 892, in any way ratify and admit the validity of the prior judgment by accepting its benefits. (Lord v. Hubert (1957), 12 Ill. 2d 83, 86-87.) Additionally, the trial judge had not ruled on any of the defendant’s petitions or motions prior to considering the question of lack of personal jurisdiction.

If the defendant in this case can establish the facts set forth in his motion to vacate the judgment, it is clear that the court did not have personal jurisdiction over him at the time the judgment was entered and the judgment is void and should be set aside. We say here only that he should not have been denied the right to a hearing on the merits of his petition. The trial court erred in denying the petition to vacate on the grounds that the defendant had submitted to the jurisdiction of the court.

The order of the trial court denying defendant’s petition to vacate the judgment is vacated and set aside. This cause is remanded to the trial court for a hearing on defendant’s petition to vacate the judgment for lack of personal jurisdiction and for such further proceedings which are not inconsistent with this opinion.

Reversed and remanded.

NASH and LINDBERG, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE MEJDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY H. HAAS, Contemnor-Appellant.
    First District (5th Division)
    No. 80-693
    Opinion filed October 16,1981.

      Michael E. Deutsch and Dennis Cunningham, both of Chicago, for appellant.
    C. David Vogel, State’s Attorney, of Pontiac (Donald D. Bernardi, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Appellant, an attorney, appeals from a judgment entered in the criminal division of the circuit court of Cook County holding him in direct criminal contempt of court for leaving the courtroom during court proceedings contrary to and in violation of a direct order of the court. The court entered a finding of contempt and at a subsequent hearing entered an order nunc pro tunc adjudging appellant to be in direct contempt of court, and imposing a fine of $100.

The sole issue presented for review is whether the action of the attorney-appellant in departing the courtoom during court proceedings for the reason that he did not wish to participate in such proceedings in a death penalty case without the presence of the client was conduct sufficient to constitute a direct contempt.

The following facts are undisputed. On February 8, 1980, proceedings were in progress in the criminal division of the circuit court of Cook County in the case of The People of the State of Illinois v. John Bailey, et al. This case involved 16 defendants charged with, among other offenses, 15 counts of murder for the deaths of three prison guards arising out of the July 22, 1978, prisoner rebellion at Pontiac Correctional Facility. Appellant, an attorney, was appointed by order of court to represent Joseph Smith, one of the prisoners charged with the murders for which the State sought imposition of the death penalty. Appellant was one of 16 attorneys, including those for the defense and prosecution, appearing before the court on this date. Following the taking of roll to determine that all attorneys were present, the court began to address various matters which included the scheduling of pretrial motions, the timetables for submission of points and authorities, and in general the court’s guidelines regarding the scheduling of hearings on pretrial matters. At this time the defendants, who were all in custody, remained locked up outside the courtroom. After several minutes the following discussion occurred:

“MR. HAAS: Judge, my client has not waived his appearance for this hearing and I don’t know why the Defendants should not be here for this.
THE COURT: This is not a hearing. The Court is announcing rules of Court and schedules.
MR. HAAS: Judge, I think the Defendants are entitled to know that, too. I don’t understand why they should not be here for this.
As far as my client goes, he has not waived his appearance.
THE COURT: Fine. These are non-[sic] matters that do not affect the rights of clients but they do affect counsel.”

Following this dialogue, the court continued to announce certain timetables and address conflicts of schedules with the attorneys present. One of the defense counsel then brought to the court’s attention the matter of possible exculpatory notes taken by one of the prosecutors, which had not been turned over to the defense. After some discussion between the court and defense counsel as to whether the motion dates should be extended because of the newly found statements, the prosecutor gave an explanation for failing to provide such statements. Another defense counsel then requested that the defendants be brought into the courtroom but the court advised him that the discussion on the matter was finished. Nevertheless the discussion was renewed by several counsel, turning then to the question of whether sanctions would be imposed against the State for this, and any future incidents that might occur. This question was resolved. The discussion thereafter turned again to the scheduling of dates for motions. About an hour had elapsed since the start of the day’s hearing. Then, while still outside the presence of the defendants, the court permitted an attorney from the Department of Corrections to file a motion to quash subpoenas for psychological reports. At this point appellant and another defense attorney renewed their requests to have defendants brought into the courtroom. In response the court indicated that the mere filing of a motion was a procedural, not a substantive matter. The court then embarked on discussions with appellant and other counsel regarding the setting of the hearing on the motion to quash, advising counsel of the date, and further hearing from another defense counsel as to whether subpoenas would be necessary to secure parole files for discovery by defendants. At this point the following exchange began between counsel for another defendant and the court:

“MS. MURPHY: Your Honor, for the record, I will not proceed with the proceedings as long as my client is not allowed to be in the courtroom because I think that he should be a party, too. Therefore, I am going to — for the record, I am going to leave the courtroom until they are brought into these proceedings.
THE COURT: I am ordering you not to leave the courtroom.
MR. HAAS: I will also do the same thing.
THE COURT: I am ordering you not to leave this courtroom.
MR. HAAS: Judge, I cannot represent my client in good faith without having my client here.
THE COURT: I am ordering you not to leave.
(THEREUPON, Ms. Murphy and Mr. Haas left the courtroom.)
THE COURT: Mr. Haas and Mrs. Murphy will be ordered to appear before this Court at 11:00 o’clock on Monday morning to show cause why they should not be held in contempt of Court.”

Following the incident, and after a brief discussion between the court and counsel, the court stated that it would entertain a motion brought by one of the defense counsel. The court thereupon ordered the defendants, Murphy and appellant, to be brought into the courtroom, and called for a short recess in the proceedings. Following the recess defendants were brought into the courtroom. The court, before proceeding on the motion, stated for the record that because Murphy and appellant had left the courtroom, in direct violation of the court’s order to remain, he was finding them to be in contempt of court, and ordered them to appear before him on February 11,1980, for further proceedings. After a hearing on that date, the court denied appellant’s motion to vacate the order of contempt and entered an order nunc pro tunc finding appellant to be in direct criminal contempt of court and imposing upon him a fine of $100. Thereafter, upon a separate hearing, the court accepted an apology from Murphy for her actions, and accordingly ordered that no sanction be imposed against her. Upon review, we consider only the order of contempt with respect to appellant.

Opinion

It is a long standing rule in Illinois that acts which constitute contempt of court are those which are calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute. (In re Estate of Melody (1969), 42 Ill. 2d 451, 248 N.E.2d 104.) Direct contempt takes place in the presence of the court and all elements of the offense are matters within the court’s personal observation and knowledge. (People v. McNeil (1976), 42 Ill. App. 3d 1036, 356 N.E.2d 1073.) It is recognized that the contempt power is an extraordinary power of the court and accordingly should be exercised only in extreme situations. (People ex rel. Woodward v. Oliver (1975), 25 Ill. App. 3d 66, 322 N.E.2d 240, cert, denied (1975), 423 U.S. 927,46 L. Ed. 2d 255, 96 S. Ct. 275.) A stand taken by counsel in good faith and in the interests of his client should not ordinarily serve as a basis of a charge for contempt. (In re McConnell (1962), 370 U.S. 230, 8 L. Ed. 2d 434, 82 S. Ct. 1288; People v. Kuelper (1977),46 Ill. App. 3d 420, 361 N.E.2d 29.) A distinction is to be made, however, between contempt based on words of counsel as opposed to contempt based upon the acts or manner of counsel. In the former situation the court must act with great forebearance before punishing counsel, but in the latter less restraint is required. People v. Roberts (1976), 42 Ill. App. 3d 604, 356 N.E.2d 429.

Appellant strongly urges that his action in leaving the court constituted a good faith effort to represent his client in a situation involving unusual circumstances. One of these circumstances, appellant explains, was his client’s particular mistrust of the criminal justice system in general, and of defense attorneys in particular. As a result, appellant states, his defendant along with others exacted the minimum promise from their lawyers that they would not go ahead with any part of the case without the defendants being present in open court.

In People ex rel. Woodward v. Oliver (1975), 25 Ill. App. 3d 66, 322 N.E.2d 240, cert, denied (1975), 423 U.S. 927, 46 L. Ed. 2d 255, 96 S. Ct. 275, a similar argument was considered and rejected. In that case the contemnor-attorney argued that his client was distressed by the frequency of in camera discussions during his trial. The appellate court held that it was the duty of the trial judge to direct the course of the trial and administer justice fairly and impartially. It was the responsibility of the attorney to educate to the purposes of side bar and in chambers discussion. The court refused to allow appellant to assert his client’s particular sensibilities or appellant’s failure to illuminate his client to shift responsibility for the contemptuous incident to the trial judge.

We hold these principles to be applicable in the instant case. There is nothing in the record before us to suggest that appellant informed the court of his client’s particular mistrust of defense attorneys nor is there any reference therein to the promise alluded to in appellant’s brief. Even assuming the trial court had knowledge of these matters, they cannot be asserted to diminish the authority of the court to direct the course of the trial and administer justice fairly and impartially. It was the duty of appellant to educate his client to the purpose of pretrial hearings regarding the conduct and management of the litigation. The particular sensitivities of his client or his failure to illuminate his client cannot be used to shift the responsibility for his actions to the trial judge.

Appellant also contends that his disobedience of the trial court’s direct and express order is not enough, alone, to support a finding of direct contempt. He argues that without an actual obstruction of justice there is no contempt. Appellant, therefore, urges reversal of his order of contempt on the basis of the similarity between his case and In re McConnell.

The decision in In re McConnell, however, is not controlling in the instant case. In that case the Supreme Court held that under 18 U.S.C. §401 (1948), in order for conduct to be punishable as contempt, it must be clearly shown that the conduct “actually obstructed the district judge in the ‘performance of judicial duty.’ ” (370 U.S. 230, 234, 8 L. Ed. 2d 434, 437, 82 S. Ct. 1288, 1291.) The Supreme Court’s opinion, however, is grounded upon Federal statutory limits imposed upon Federal courts’ contempt powers. Illinois has not so limited its courts’ contempt powers to require an actual and material obstruction of justice. The record of the instant case does, nonetheless, show that a short recess was taken after the interchange and departure of appellant. It is also noted that the proceedings could properly resume only after appellant and Murphy were ordered returned to the courtroom. But as the court in People ex rel. Woodward v. Oliver points out, indeed, even in Federal courts which apparently require actual and material obstruction of the proceeding an essential element of the contempt, it has been stated:

‘[T]his is not to say that attorneys may press their positions beyond the court’s insistent direction to desist. On the contrary, the necessity for orderly administration of justice compels the view that the judge must have the power to set limits on argument. We simply encourage judges to exercise tolerance in determining those limits and to distinguish carefully between hesitating, begrudging obedience and open defiance.’ In re Dellinger (7th Cir. 1972), 41 F.2d 389, 399.” 25 Ill. App. 3d 66, 76-77, 322 N.E.2d 240, 247.

The record in the instant case clearly sets forth an act of open defiance of the court’s insistent direction to appellant to remain in the courtroom. Appellant’s apparent threat to leave unless his demand was met was an attempt at coercion that, once carried out, amounted to an open defiance of the court’s repeated and express order to him to remain in the courtroom. Certainly such an act of defiance was one which did derogate from the court’s authority and dignity.

Appellant next urges that the order of contempt be reversed because he did not intend his departure from the courtroom to be a contemptuous act. This argument is without merit. Whether a direct contempt has been committed depends upon the act and not the alleged intention of the offending party. People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50, cert. denied (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750.

A large part of appellant’s brief addresses the merits of his belief that his client was entitled to be present at the hearing. They hinge on whether the proceedings were procedural or substantive in nature and effect. Even assuming his position is correct, his direct defiance of the court’s order cannot be condoned under the standard stated in In re Estate of Melody.

In this court, appellee filed a motion to strike appellant’s brief and dismiss appeal which was ordered to be considered with the case. The motion alleges that appellant’s brief contains statement of facts, argument, and conclusions replete with matters dehors the record and that it unjustly reflects on the integrity and ability of the trial judge totally, which criticism is not warranted by anything in the record, all contrary to Supreme Court Rule 341(e) (Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)). We agree. Such violations of the rules are sufficient to warrant dismissal of an appeal. (Biggs v. Cummins (1959), 16 Ill. 2d 424, 158 N.E.2d 58, cert. denied (1959), 361 U.S. 868, 4 L. Ed. 2d 107, 80 S. Ct. 128.) In any event, in the absence of a stipulation, matters outside the record cannot be considered by this court on review. (Strand v. United (Methodist) Church (1973), 12 Ill. App. 3d 917, 298 N.E.2d 779, rehearing (1973), 16 Ill. App. 3d 744, 307 N.E.2d 621.) Therefore, appellee’s motion to strike is granted as to the facts, arguments and conclusions in appellant’s brief which are dehors the record, and in particular, those statements and portions which are critical of the trial judge, personally or as to his integrity and ability. We have relied upon a careful review of the record on appeal in concluding that the trial court acted most properly and ably therein, and was correct in its finding and order. (See Harper v. Kennedy (1958), 15 Ill. 2d 46, 153 N.E.2d 801.) Accordingly, the motion to dismiss the appeal will be denied.

For the foregoing reasons, the appellee’s motion to strike appellant’s brief is granted in part as hereinbefore set forth, appellee’s motion to dismiss appeal is denied, and the order adjudging appellant guilty of direct contempt of court and imposing fine is affirmed.

Motion allowed in part and denied in part; order affirmed.

LORENZ and WILSON, JJ„ concur.


author: Mr. JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ALEXANDER KLIMEK, Defendant-Appellee.
    Second District
    No. 80-652
    Opinion filed October 15, 1981.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Mary Robinson and Marilyn Martin, both of State Appellate Defender’s Office, of Elgin, for appellee.
   Mr. JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Alexander Klimek, was arrested by the Village of Wood-ridge police on March 6, 1980, and was subsequently charged by information with violation of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56/2, par. 704(c)); disorderly conduct (Ill. Rev. Stat. 1979, ch. 38, par. 26 — 1(a)(1)); two counts of aggravated battery (knowing the individual harmed to be a police officer while such officer was in the execution of his official duties) (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(6)); and three counts of resisting arrest (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 1). The defendant filed a motion to quash his arrest and suppress evidence. Specifically, his motion requested the suppression of all physical evidence seized, suppression of all statements, admissions, confessions, whether inculpatory or exculpatory, written or oral, and all testimony pertaining to events which occurred inside the defendant’s home at the time of his arrest. The trial court granted the defendant’s motion in its entirety, quashing the arrest and suppressing all evidence requested in the motion. The State has taken interlocutory appeal of that order, pursuant to Illinois Supreme Court Rule 604(a)(1). Ill. Rev. Stat. 1979, ch. 110A, par. 604(a)(1).

Officer Chris Marema of the Village of Woodridge Police Department testified at the suppression hearing that he arrived at the apartment building where defendant resided at approximately 10 a.m. on March 6, 1980. Upon arrival, Officer Krupka informed him that defendant’s upstairs neighbor had complained about defendant’s foul language and a complaint was going to be signed for disorderly conduct. The complaint, however, was not signed until after the defendant had been taken into custody and transported to the Village of Woodridge police station. Marema further testified that Officers Krupka, Andrewski, and himself, all in police uniform, proceeded to defendant’s apartment and knocked on the door. When a female voice inquired from behind the closed door what they wanted, the officers informed her that they were police officers, informed her of the complaint, and requested to speak with Alexander Klimek. The female then opened the door and entered the hallway. She informed the officers that Klimek was ill and could not come to the door. At that point, a male voice from inside the apartment yelled, “Get in here. Those m_f_ain’t coming in.” The female then attempted to run from the hallway and re-enter the apartment, and the door was slammed on Officer Krupka’s “leg and foot area.” The officers then pushed on the door inward, swung it open and went into the apartment. Defendant was found behind the door up against the wall, and he began swinging, striking Marema and pushing the other officers. After subduing the defendant, Officer Marema observed a clear plastic “baggie” containing a green, leafy substance, alleged to be cannabis, lying near the couch which was three or four feet from the door. The item was then seized and defendant was arrested and taken to the police station.

Officer Krupka testified he had been assigned to a call to speak to a complainant regarding a complaint of disorderly-conduct. He then spoke with this person who said she wished to sign a complaint. She told him that they had problems with noise with the people who lived downstairs and that there had been pounding on the floor of their apartment and the shouting of obscenities directed toward her family. Officer Krupka then testified that the other two officers joined him and they went down to defendant’s apartment. After knocking on defendant’s door, Krupka heard a female voice ask what was going on. He told her they wished to speak with Mr. Klimek and would like to know if he was home. The female said he was unavailable and sick and couldn’t come to the door. Krupka testified that he indicated there was a complaint from upstairs, and then the female came out. He told her then that the people upstairs wished to sign a complaint and Mr. Klimek would be arrested. She told him they had no right to knock at the door and the police weren’t going to come in. As she began to re-enter the apartment, the door opened and he heard a voice shout that they wouldn’t get in. Krupka stated he attempted to then look in the door a little better, and the door slammed on his foot which was just inside the threshold of the door. The officers then attempted to enter the apartment. Krupka testified he did this “for my safety as to who was behind the door ” * 0 and that a battery had been committed.” He saw defendant then hit Officer Marema. After the defendant was arrested and taken to the police station, he advised defendant of his Miranda rights. No other witnesses testified at the hearing.

At the time of their forced entry into the defendant’s apartment, the police officers had neither an arrest nor a search warrant. The testimony also established that the officers had not personally observed defendant’s actions with regard to the initial disorderly conduct charge. Also, consent to enter the apartment was refused by both of the apartment’s occupants.

On appeal, the State’s argument to justify the warrantless entry is that sufficient exigent circumstances existed which entitled the arresting officers to enter defendant’s apartment to make a warrantless arrest. Secondarily, the State contends that even if exigent circumstances are not found the trial court’s suppression order is too broad.

Absent exigent circumstances, the fourth amendment prohibits the police from making a nonconsensual entry into a suspect’s home for the purpose of effecting an arrest without a warrant. (Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) The officers’ entry in the present case was not pursuant to warrant and was clearly nonconsensual. Therefore, in order to justify the officers’ entry into defendant’s home, there must be a showing of exigency.

The question of whether exigent circumstances exist is a question of law, subject to de novo review by this court. (People v. Abney (1980), 81 Ill. 2d 159, 168, 407 N.E.2d 543, 549.) Our supreme court in People v. Abney (1980), 81 Ill. 2d 159, 168, 407 N.E.2d 543, 547, defined three factors indicative of the presence of exigent circumstances authorizing a warrantless entry of a dwelling, and set forth four factors which suggested to the court that the officers acted in a reasonable manner. This court summarized those factors in People v. Wilson (1980), 86 Ill. App. 3d 637, 408 N.E.2d 988, as follows:

“(1) The recentness of the offense and the need for prompt action (i.e., within the spirit of the ‘hot pursuit doctrine’);
(2) The fact there was no deliberate or unjustified delay by the officers during which time a warrant could have been obtained and
(3) The fact the suspect was armed and exhibited some sign of a violent character.”

The reasonableness factors were:

“(1) The existence of a clear showing of probable cause based on reasonably trustworthy information;
(2) The clear identification of the suspect;
(3) The belief that the suspect was in the premises entered and
(4) The fact the entry made was peaceful.” (86 Ill. App. 3d 637, 642, 408 N.E.2d 988, 992.)

The State contends that each of the Abney factors giving rise to exigent circumstances are present under these facts. We disagree.

“The recentness of the offense and the need for prompt action” cannot justify the officers’ entry in the present case. First, it should be noted that Officer Krupka’s placement of his foot inside the threshold of defendant’s door constitutes an entry. There is no suggestion in the record that the acts of defendant prior to this time (i.e., his alleged disorderly conduct) necessitated prompt action by the officers. Although it appears from the record that the defendant’s alleged disorderly conduct occurred sometime that morning before the officers’ arrival, the mere “recentness of the offense,” by itself, without a need for prompt action, cannot give rise to exigent circumstances under these facts. It cannot be said under these circumstances that “[d]elay to obtain a warrant would have impeded a promising police investigation and conceivably provided the added time needed * * * to avoid capture altogether.” United States v. Robinson (D.C. Cir. 1976), 533 F.2d 578, 583 (en banc), cert. denied (1976), 424 U.S. 956, 47 L. Ed. 2d 362, 96 S. Ct. 1432, as quoted by the court in People v. Abney (1980), 81 Ill. 2d 159, 170, 407 N.E.2d 543, 550.

The State further contends that promptness of action was necessitated by the officers in order to prevent injury to Officer Krupka. However, the defendant’s act of slamming the door on Officer Krupka’s foot came only after Krupka’s original unlawful entry. Such is a classic example of police-created exigency which cannot be the basis for a warrantless entry. See People v. Wilson (1980), 86 Ill. App. 3d 637, 643, 408 N.E.2d 988, 993.

Similarly, the second and third factors listed in Abney as suggestive of exigency do not aid the State. Although there was no “deliberate or unjustified delay by the officers during which time a warrant could have been obtained,” the mere fact that the officers did not hesitate between the time of the complaint and their forcible entry does not render void the necessity of obtaining a warrant. As previously noted, a delay in obtaining a warrant would not have jeopardized the apprehension of the defendant or hindered any police investigation. Also, the third Abney factor does not indicate exigency under these circumstances. There was no reason to believe defendant was armed and he was not accused of committing a violent crime or one involving a weapon. In fact, the offense he was accused of was a non-violent misdemeanor and which even the dissent in Payton recognized in stating the common law rule that invasions of the home should occur only in case of the most serious crimes. (Payton v. New York (1980), 445 U.S. 573, 616, 63 L. Ed. 2d 639, 669, 100 S. Ct. 1371, 1395 (White, J., dissenting).) Although defendant’s conduct could be described as hostile, he had not perpetrated a “violent” act prior to the officers’ arrival that could lead to their “time-consuming speculation as to whether more violence will occur while a warrant is sought.” (81 Ill. 2d 159, 171, 407 N.E.2d 543, 551.) These circumstances clearly did not justify a warrantless entry. See People v. Sanders (1978), 59 Ill. App. 3d 6, 9-10, 374 N.E.2d 1315, 1317-18.

Since we have determined that the entry into defendant’s apartment was violative of his fourth amendment rights, the fruits obtained by exploitation of that illegality must be suppressed. (People v. Wilson (1980), 86 Ill. App. 3d 637, 643, 408 N.E.2d 988, 991.) Accordingly, we hold that the trial court correctly suppressed the physical evidence, the cannabis, seized inside the defendant’s apartment. Also, the admission of this evidence cannot be justified on a “plain view” theory since the officers’ entry was unlawful. The validity of sighting evidence in plain view following a police entry into a home is dependent upon the validity of the entry. People v. Abney (1980), 81 Ill. 2d 159, 163, 407 N.E.2d 543, 545.

Defendant’s motion also requested suppression of “all statements, admissions, confessions whether inculpatory or exculpatory whether written or oral” and “all testimony as to events which occurred inside the defendant’s home.” With regard to the court’s suppression of testimony concerning statements or events which occurred prior to the arrival of the police and the events surrounding the charge against defendant of disorderly conduct, we hold that this was error. The facts giving rise to the original disorderly conduct complaint are entirely independent from the illegal entry in this case and are not tainted thereby.

Also, concerning defendant’s “statements, admissions” and “confessions,” the record lacks sufficient evidence to determine whether their suppression was error. The record does not reveal where or when these statements were made nor to what offense they were directed, if in fact any statements were made. Accordingly, we remand for a determination of these issues.

Finally, with regard to the suppression of testimony concerning the events which occurred inside of defendant’s apartment and which form the basis of the aggravated battery and resisting arrest counts, we find this portion of the suppression order to be erroneous. In People v. Abrams (1971), 48 Ill. 2d 446, 271 N.E.2d 37, our supreme court refused to extend the exclusionary rule to suppress evidence of a defendant’s own unlawful conduct which was in response to police actions which were in violation of the fourth amendment. The court reasoned that to allow a defendant to suppress evidence of his unlawful conduct done in reaction to an illegal search would be to encourage unlawful and retaliatory conduct. (48 Ill. 2d 446, 456, 271 N.E.2d 37, 44.) The Illinois Criminal Code specifically provides that “[a] person is not authorized to use force to resist an arrest which he knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if he believes that the arrest is unlawful and the arrest in fact is unlawful.” (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 7.) Our supreme court in construing section 7 — 7 has held that resistance of even an unlawful arrest by a known officer is a violation of section 31 — 1 (Ill. Rev. Stat. 1979, ch. 38, par. 31 — 1). (People v. Locken (1974), 59 Ill. 2d 459, 465, 322 N.E.2d 51, 54; see also People v. Rounds (1977), 46 Ill. App. 3d 298, 360 N.E.2d 1210.) Therefore, if the officers were attempting to effectuate an arrest, regardless of its legality, the defendant could not lawfully resist. Thus, evidence of defendant’s actions would not be subject to suppression under the exclusionary rule. (People v. Abrams (1971), 48 Ill. 2d 446, 456, 271 N.E.2d 37, 44.) While issues of fact may arise as to whether the police were attempting to effectuate an arrest or whether the defendant knew them to be peace officers, those matters are properly resolved by the trier of fact at trial. See People v. Wareberg (1976), 44 Ill. App. 3d 78, 82, 358 N.E.2d 54, 57.

Accordingly, the order suppressing the physical evidence seized inside the defendant’s apartment is affirmed. The portion of the order granting suppression of all other evidence requested in defendant’s motion is reversed, and the cause is remanded for proceedings consistent with the views expressed herein.

Affirmed in part, reversed in part and remanded.

NASH and LINDBERG, JJ., concur.


author: Mr. JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES BIVENS (Impleaded), Defendant-Appellant.
    First District (1st Division)
    No. 80-1081
    Opinion filed September 28, 1981.
    — Rehearing denied November 2, 1981.

      Ralph Ruebner and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and J. Mark Lukanich, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

After a jury trial, Charles Bivens (defendant) was convicted of rape and deviate sexual assault. He was sentenced to two concurrent terms of 25 years. Defendant appeals.

On appeal, defendant contends the evidence was too confusing and contradictory to sustain his conviction beyond a reasonable doubt; the defense was not tendered allegedly exculpatory evidence; and the trial court made evidentiary errors which require reversal.

On July 10, 1979, the complainant was working at a snack shop on 43d Street in Chicago. At approximately 3 a.m. two of her friends, John Green and Tyron Hodges, arrived at the store to escort her home. After about 15 minutes, complainant closed the store and the three left. They saw defendant and LeRoy McCaster, a co-defendant, whose case was severed from defendant’s. Complainant knew defendant prior to this occasion, and had actually lived with defendant for a period in 1977.

Defendant and McCaster approached complainant and her friends. Defendant put his arms around the complainant and asked whether Green was her boyfriend. She replied he was not. Defendant then started an altercation with Green, knocking a cigarette and a bag of food out of his hands. McCaster then put his hand in his pocket and told defendant not to worry because he (McCaster) had Green covered. Green then withdrew from the scene, presumably to get help. He returned in approximately 5 to 10 minutes but defendant, complainant and McCaster were no longer there.

The complainant testified that when Green left, defendant and McCaster each grabbed one of her arms and pulled her away. They went through an alley and walked south until they reached a school. They went through the schoolyard until they emerged at Drexel Park. Complainant testified she yelled for help from several people in the park, but no one responded. She also testified that throughout this period she pleaded to be left alone, to which defendant replied that if she did not “shut up” he would “kick her ass.”

Finally, complainant was taken to a courtyard building on the west side of Drexel. She testified that defendant either ordered her to take her pants off or to take one leg out of her pants, and to get on her knees. He then ripped off her underpants and forced her to perform a deviate sexual act on him. Defendant then told McCaster he was next. McCaster also forced complainant to perform such an act. She was then pushed down and McCaster had intercourse with her.

Complainant was then taken to another gangway where defendant again ordered her to perform a similar sexual act. She refused and defendant hit her in the jaw, “breaking her tooth.” She was then forced to perform the act on both defendant and McCaster, and both men had intercourse with her. Defendant then poured some rum on complainant stating if she told the police anything, they would think she was drunk.

Defendant and McCaster then took complainant back across Drexel Park to a playground. There she was again forced to perform deviate acts on defendant and McCaster. As complainant was led down 43d Street, she noticed a parked police car. At approximately 4:50 a.m. the two men left her.

Complainant immediately boarded a bus at 43d Street and Ellis and told the driver she had been raped. The driver drove to an “L” station where he called police. They arrived shortly thereafter..

Complainant was taken to Mercy Hospital where she was interviewed and examined by Nurse Colleen Burns and Dr. Jose Balboa. Nurse Burns wrote a report which stated complainant denied vaginal contact but said she had oral sex. Dr. Balboa examined complainant for external injuries but could not detect any. He also took smears from complainant’s throat and vagina. In his preliminary examination he could not detect any sperm. At the same time, Dr. Balboa created more slides from the smears and placed them in a “rape kit”, which is a kit used in the collection and transportation of evidence on sexual assault. Dr. Balboa also placed in the kit a report which was signed by himself and Nurse Burns that “she [complainant] was forced to have vaginal and oral sex with two unknown males.” The kit was then sealed.

Later, the slides in the kit were examined by Michael Zefeldt, a microanalyst for the Chicago Police Department. After a detailed microscopic examination, Zefeldt found the presence of sperm.

At approximately 5 a.m. Chicago Police Officer Daniel Nendza and his partner responded to a call directing them to 4155 South Lake Park. When they arrived they heard a woman scream “Charles, leave me alone.” Officer Nendza ran into the building and saw defendant holding a woman in his arms. LeRoy McCaster was also at the scene. Defendant and McCaster were arrested, but neither of them were charged with any crime regarding this latter incident. However, while at the area police station both of them were identified by complainant.

I

Defendant contends the evidence adduced at trial is insufficient to sustain a verdict of guilty beyond a reasonable doubt. Defendant urges a lack of corroboration of complainant’s story, and inconsistencies in her statements. Defendant points to the failure of Dr. Balboa to detect evidence of sperm, complainant’s “broken tooth”, or of injuries to her arms. Defendant also stresses the lack of physical evidence that complainant’s underpants were “torn off”, the fact she did not call for help at the snack shop nor when she noticed the police car parked on Ellis, and the additional fact that her friend, Green, never contacted police after complainant was abducted. Furthermore, defendant notes the bus driver did not notice either defendant or McCaster, though complainant testified she jumped on the bus immediately after being freed from their grasp. Finally, defendant points out inconsistencies between complainant’s testimony and earlier statements, particularly her statement to Nurse Burns in which she denied vaginal contact, and her testimony in a preliminary hearing where she did not mention the initial deviate sexual assault.

All of the factors described above merely establish that there was some conflict of testimony and present a question as to the credibility of the complaining witness. The determination of the credibility of witnesses and the resolution of conflicting testimony are issues which are squarely within the province of the jury. (People v. Yarbrough (1977), 67 Ill. 2d 222, 227, 367 N.E.2d 666.) Furthermore, in People v. Secret (1978), 72 Ill. 2d 371, 376, 381 N.E.2d 285, the supreme court established that corroborating evidence is not required to sustain a conviction for rape, as long as “complainant’s testimony is clear and convincing 0 0 We have determined that “[m]inor variances in a complainant’s testimony may go to the question of credibility, but will not raise the corroboration requirement where the testimony is otherwise clear and convincing.” People v. Osborn (1977), 53 Ill. App. 3d 312, 323, 368 N.E.2d 608, appeal denied (1978), 71 Ill. 2d 600, cert. denied (1978), 439 U.S. 837, 58 L. Ed. 2d 134, 99 S. Ct. 122.

In the case at bar, we find the variations in the testimony of the complaining witness to be minor, and we find her testimony was clear and convincing. Furthermore, complainant’s testimony was corroborated by the testimony of John Green, the findings of microanalyst Michael Zefeldt, the arrest of defendant within very few minutes of the rape and in close vicinity, and complainant’s immediate report of the rape to the bus driver and police. (See Secret, 72 Ill. 2d 371, 378.) From the record before us, we find more than ample evidence to support the verdict beyond any reasonable doubt.

II

Next, defendant argues he was prejudiced because he was not tendered the report sealed in the rape kit which stated “she [complainant] was forced to have vaginal and oral sex with two unknown males,” until after defendant had rested his case. Defendant contends the failure to disclose the report, despite a valid discovery request, violated Supreme Court Rule 412 (Ill. Rev. Stat. 1979, ch. 110A, par. 412), and the principles set forth in Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, and United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392. Defendant does not argue bad faith on the part of the State. It does not appear the State had knowledge of the report until the “rape kit” was examined by the defense attorney during trial. Upon discovering the report, defendant moved for a mistrial. The motion was denied.

The pertinent portion of the rule (Ill. Rev. Stat. 1979, ch. 110A, par. 412(a) (i)) provides:

“(a) * * * [T]he State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
(i) * * * [Memoranda containing substantially verbatim reports of their [prospective State’s witnesses] oral statements, and a list of memoranda reporting or summarizing their oral statements. Upon written motion of defense counsel memoranda reporting or summarizing oral statements shall be examined by the court in camera and if found to be substantially verbatim reports of oral statements shall be disclosed to defense counsel; * *

In the case at bar, the defense has made no showing that the statement in question was a summarization of the oral statement of the complaining witness or that it was a “substantially verbatim” report. (See People v. Witherspoon (1979), 69 Ill. App. 3d 391, 398, 388 N.E.2d 1, appeal denied (1980), 81 Ill. 2d 587.) The rule provides for an in camera hearing to determine the discoverability of such statements. However, the defendant never moved the trial court to determine by whom the statement was made, and whether it was discoverable. Instead, defendant moved for a mistrial, which we believe was properly denied. (See People v. Wilson (1975), 32 Ill. App. 3d 842, 845, 336 N.E.2d 92.) In addressing a similar situation, the supreme court held the failure to produce a police report did not necessitate a new trial. (People v. Durso (1968), 40 Ill. 2d 242, 250, 239 N.E.2d 842):

“Here there is even some doubt that the police report constitutes a statement of the witness. It is not signed by her, nor specifically attributed to her, * * *. In any event, no attempt whatsoever was made during the trial to lay a foundation for its existence, in spite of the fact that [the witness] was cross-examined extensively and the defense knew that she had reported the invasion of her house to the police. We conclude that there is no evidence that the State concealed the report from defendants and we find no error in the fact that it was not produced.”

Furthermore, we cannot see how defendant was substantially prejudiced by the late disclosure. Such a showing is required for a new trial to be granted. (People v. Greer (1980), 79 Ill. 2d 103, 120, 402 N.E.2d 203.) In the case at bar, the case against defendant was quite strong, and any possibly exculpatory effect of the statement in question certainly would have been diminished by the existence of a report prepared by Nurse Burns and signed by complainant stating, “Pt. states at 3:15 a.m. she was forced by two known black males to travel on foot from 43 and Berkley to 42 and Ellis — at which time both men forced her to have oral sex.” (Emphasis added.)

Ill

Defendant contends the State brought out evidence and made final argument which suggested that defendant committed an offense other than the one for which he was being tried. As above set out, Officer Nendza testified to the circumstances surrounding his arrest of defendant, about four blocks away from the occurrence of the crime for which he was charged, and shortly thereafter. No objection was made to this testimony by defendant during trial. A number of times counsel for defendant stated “Objection” as to collateral matters and the trial judge said “Sustained.” However, no objection was made to the substance of the testimony surrounding the arrest.

In closing argument the prosecutor referred to these circumstances. An objection was made by counsel for defendant. The objection was limited to the statement that the prosecutor had allegedly misquoted the testimony of the police officer.

In our opinion, these issues have not been preserved for appellate review and are accordingly waived. Only general objections were offered when the evidence was elicited and when the allegedly improper closing statement was made. “[A] general objection, if overruled, will not preserve the issue for review on appeal.” (People v. Queen (1974), 56 Ill. 2d 560, 564, 310 N.E.2d 166.) Defendant did not raise these issues in his written motion for a new trial. “ ‘Where the grounds for a new trial are stated in writing,’ as is the case here, ‘the accused is limited on review to the errors alleged therein and all other errors are deemed to have been waived.’ ” People v. Edwards (1978), 74 Ill. 2d 1, 4, 383 N.E.2d 944, quoting People v. Hairston (1970), 46 Ill. 2d 348, 367, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658. See also People v. Adkisson (1980), 83 Ill. 2d 1, 7, 413 N.E.2d 1238, which comments upon the “salutary purpose of a firm waiver rule ° °

We do not find the error alleged here so obvious and of such a crucial nature that we should raise the issue to the level of plain error. (See Adkisson, 83 Ill. 2d 1, 8.) Unlike the cases cited by defendant (e.g., People v. Miller (1977), 55 Ill. App. 3d 421, 370 N.E.2d 1155, appeal denied (1978), 71 Ill. 2d 600, and People v. Watson (1977), 55 Ill. App. 3d 564, 371 N.E.2d 113), in the case at bar, the allegedly improper evidence did not actually disclose the commission of a collateral crime. At trial, defendant was able to demonstrate he was neither convicted nor even charged with a crime regarding this subsequent incident. Furthermore, the general circumstances of the arrest are admissible to show its extreme “ ‘proximity in time and place’ ” to the crime with which defendant was charged. Watson, 55 Ill. App. 3d 564, 568.

Even the inference of the commission of other crimes is admissible to show a proximity in time and area between the commission of the crime charged and other similar incidents. Miller, 55 Ill. App. 3d 421, 426.

In addition, the supreme court has held that evidence of other and independent crimes is admissible, if relevant “for any purpose other than to show propensity to commit a crime ” ° People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200.

IV

Defendant contends reversible error resulted from introduction of hearsay evidence by the People. Officer Merriweather testified that on July 10, 1979, about 5 a.m., he went to Michael Reese Hospital and spoke to a doctor. He went to the Mercy Hospital where he spoke to another, doctor. He went to the police station where he “interviewed” defendant and McCaster. He went to Mercy Hospital where he spoke to the complainant. He then accompanied the complainant to the various places mentioned in her testimony. Defendant objected to this testimony on the ground that this was tantamount to corroboration of the statements of the complainant.

In final argument the prosecutor alluded to the fact that the police officer had met the complainant. Counsel for defendant objected to this statement on the ground it was outside the record. The trial court then admonished the jury to disregard any statement of counsel not borne out by the testimony. The jury was instructed at the end of the trial that closing arguments should be confined to the evidence; closing arguments are not evidence and argument by the attorneys not based on the evidence should be disregarded. Illinois Pattern Jury Instructions, Criminal, No. 1.03 (1968); see People v. Olejniczak (1979), 73 Ill. App. 3d 112, 121-22, 390 N.E.2d 1339.

We reject the argument raised by defendant attacking the testimony of Officer Merriweather as hearsay. In People v. Sanders (1976), 37 Ill. App. 3d 236, 239, 345 N.E.2d 757, a police officer testified as to various things he had done including the arrest of co-defendants. The same objection regarding hearsay was raised. This court rejected the contention of defendant and held (Sanders, 37 Ill. App. 3d 236, 239):

“In our opinion, none of this evidence was within the legal definition of hearsay. 000 The testimony of [the police officer] was confined strictly to his physical activities and to the bare occurrence of the conversations. At no time did he testify to the substance of any part of any conversation. His testimony as to his activities was all in court under oath and subject to cross-examination. Under these circumstances the court acted properly in denying the motion to exclude it.”

Other authorities which considered similar situations and reached the same conclusion are People v. Dunning (1980), 88 Ill. App. 3d 706, 709-10, 410 N.E.2d 1052, and cases there cited, and People v. Meredith (1980), 84 Ill. App. 3d 1065, 1077-78, 405 N.E.2d 1306, and cases there cited. In reaching this result most of the cited cases depend upon People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, which is the classic case applicable to problems of hearsay testimony.

In the case at bar, defendant cites People v. Jones (1975), 28 Ill. App. 3d 896, 329 N.E.2d 855. There, the court held the testimony of a deputy sheriff was hearsay. However, there, the testimony of the sheriff did not amount to a statement of what he did. As the Jones court pointed out, “the testimony was clearly offered to prove that the prosecutrix could retrace the route she and her assailant had taken and was, therefore, hearsay.” (Jones, 28 Ill. App. 3d 896, 901.) No such factor is present in the instant case.

V

As shown, Officer Merriweather testified he had “interviewed” defendant. On cross-examination of the officer, defendant was precluded from bringing out the substance of the defendant’s statement. Defendant asserts this ruling was error. The scope of cross-examination is discretionary with the trial court, and its rulings will be reversed only if an abuse of discretion is shown. (People v. Blakes (1976), 63 Ill. 2d 354, 358, 348 N.E.2d 170.) In the instant case it would have been better practice to permit this type of cross-examination. However, upon the entire record before us we believe the trial court did not abuse its discretion, and that defendant was not prejudiced. People v. Myers (1980), 92 Ill. App. 3d 229, 237, 415 N.E.2d 1108.

For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ„ concur.


author: Mr. JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD CLEARLEE, Defendant-Appellant.
    First District (1st Division)
    No. 80-1286
    Opinion filed October 13, 1981.

      James J. Doherty, Public Defender, of Chicago (Ina S. Marks and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Joel A. Stein, Iris E. Sholder, and Michael Kreloff, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, defendant Richard Clearlee was found guilty of a Class 3 felony, unlawful use of weapons, and was sentenced to 8 years in the Illinois Department of Corrections. Defendant appeals.

On appeal, defendant argues that (1) he was not proved guilty beyond a reasonable doubt; (2) his right to a fair and impartial jury was violated; (3) the prosecutor’s closing argument was prejudicial; (4) evidence was improperly sent to the jury; (5) he should have been permitted to enter a guilty plea; and (6) his sentence was improper.

We affirm.

At trial, Officers McNeel, Michael Cozzi, and John Laskey testified that on the morning of September 16, 1979, they were conducting a routine surveillance of an area in which several robberies had occurred. They wore plain clothes and travelled in an unmarked police car. The officers drove past defendant and noted that he matched the description of a robbery suspect. The officers exited their car and walked toward defendant who, upon seeing the officers approach, ran into a building.

Defendant was found hiding in a corner of a vestibule. When he recognized the approaching men as police officers, he held his jacket open and offered to be searched. Officer Cozzi then saw the butt of a gun protruding from the inside left pocket of the jacket. The gun was seized. Defendant was searched, and two .32-caliber bullets were recovered from the right jacket pocket.

Stipulated evidence of defendant’s two prior robbery convictions was admitted into evidence. This evidence was necessary to prove the felony of unauthorized use of weapons. Judgments on these convictions were entered on September 1, 1977, and defendant was sentenced to concurrent terms of 2 to 6 years. Defendant was released from the penitentiary on December 16,1977.

Defendant denied possessing a gun at the time in question. He testified that the officers were searching for a drug dealer in the building. They asked defendant if he knew where the drug dealer lived. Defendant replied he did not know the person for whom police were searching. Defendant was taken to the police station. When he failed to provide information regarding a drug investigation, the arresting officers showed him a gun and stated that it was his “key back to the penitentiary.”

The State offered as impeachment defendant’s four prior robbery convictions. These convictions were distinct from the two convictions stipulated to in the State’s case-in-chief which were offered to prove the felony charge.

First, defendant argues that the evidence did not establish his guilt beyond a reasonable doubt. He contends that his conduct as attested to by the police officers was inherently unbelievable and his conviction must therefore be reversed.

Basically, defendant has challenged the credibility of the State’s witnesses and the jury’s assessment of their credibility. However, credibility is a jury question, and we will not reverse the jury’s determination unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. (People v. Beasley (1977), 54 Ill. App. 3d 109, 369 N.E.2d 260.) In this case, there was sufficient evidence which if believed by the jury proved defendant’s guilt. We do not believe that the officers’ testimony was inherently unbelievable and therefore we will not disturb the jury’s determination. The mere fact that the testimony of the accused contradicted that of the officers’ does not raise a reasonable doubt of guilt. People v. Vassar (1978), 62 Ill. App. 3d 523, 379 N.E.2d 94.

Second, defendant contends that he was denied his right to a fair and impartial jury where the State exercised nine of its 10 peremptory challenges to exclude black jurors. However, no transcript of the voir dire is included in the record. Such a record showing the circumstances surrounding the exercise of the challenges is necessary, for without it we cannot decide whether the challenges were exercised solely because prospective jurors were black. (People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029, citing People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330.) In Bracey, the court under similar circumstances held that a defendant’s burden of proving a prima facie case of discrimination could not be met through the use of numbers alone. We agree with this holding and the court’s observation that the peremptory challenge system would suffer severely if defendant, after meeting so minimal a burden, could require the State to explain its reasons for striking jurors.

Third, defendant argues that the prosecutor’s closing argument contained improper and prejudicial comments. Defendant objects to the prosecutor’s statement during rebuttal that defendant was attempting “to con the jury.” We find that the comment was an appropriate response to defendant’s closing argument. The defense theory was that the officers lied, and during closing argument, defense counsel asked the jury to decide “who is telling the truth and who is lying.” The prosecutor properly rebutted defendant’s theory and accusations in his argument.

Defendant also contends that the prosecutor improperly placed the reputation of his office behind his case by stating to the jury that he did not need business and would not try to manufacture a case. We interpret this remark as a denial that the prosecutor would be a party to a wholly fabricated case. As such, it was an invited response to defendant’s argument that the State’s witnesses lied and was proper under the circumstances of this case. People v. Griggs (1977), 51 Ill. App. 3d 224, 366 N.E.2d 581.

Fourth, defendant argues that the trial court erred in granting the jury’s request for the police inventory slip. Relying on People v. Carr (1977), 53 Ill. App. 3d 492, 368 N.E.2d 128, defendant contends that it was improper for the jury to examine the inventory slip during deliberations because it unduly emphasized the State’s evidence.

In Carr, the court found that the jury should not have been allowed to review, during deliberations, written statements of the State’s three principal witnesses. It reasoned that to the extent the statements were consistent with trial testimony, they reemphasized and bolstered the testimony. Regarding portions of the written statements inconsistent with trial testimony, the court noted that the jury was not instructed as to the proper use of the statements. The court further questioned whether the writings were admissible for any purpose.

This case is not similar to Carr. An inventory slip does not bolster the testimony of a witness as does a written statement, since a written statement generally contains a wide variety of consistent and inconsistent testimony. Furthermore, the inventory slip was properly admitted into evidence and defendant does not question its admissibility.

Generally, the decision of whether exhibits should be taken to the jury room rests within the trial court’s discretion. (People v. Castillo (1976), 40 Ill. App. 3d 413, 352 N.E.2d 340; People v. Diggs (1967), 81 Ill. App. 2d 361, 225 N.E.2d 665.) This discretion was not abused here.

Fifth, defendant contends his guilty plea should have been accepted. The record indicates that during the course of admonishments, defendant stated he was innocent. The trial court’s refusal to accept a guilty plea was therefore proper. (People v. Morgan (1974), 59 Ill. 2d 276, 319 N.E.2d 764.) Furthermore, defendant indicated that he was not ready for trial, that witnesses who were present at the time of his arrest had not been contacted, that he never discussed going to trial with his attorney, and that he therefore wished to plead guilty. A guilty plea may be rejected in an exercise of judicial discretion. (Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495.) In view of the circumstances of this case, we find no abuse of discretion.

Finally, defendant argues that his sentence was improper because the same prior convictions used to enhance the unlawful use of weapons charge from a misdemeanor to a felony were also used to impose an extended term sentence. Defendant has cited Busic v. United States (1980), 446 U.S. 398, 64 L. Ed. 2d 381,100 S. Ct. 1747, Simpson v. United States (1978), 435 U.S. 6, 55 L. Ed. 2d 70, 98 S. Ct. 909, and People v. Jones (1980), 89 Ill. App. 3d 1030, 412 N.E.2d 683, as authority for his contention.

Busic, Simpson and Jones hold that where more than one offense is carved from the same physical acts, multiple convictions and sentences thereon cannot stand. Here, defendant was charged with, convicted of, and sentenced for only one offense. Therefore, the cases cited by defendant are inapplicable.

We find that the trial court did not err in sentencing defendant. In People v. Robinson (1980), 89 Ill. App. 3d 211, 411 N.E.2d 589, defendant’s use of force was used as proof of robbery and home invasion charges and was also considered by the court in sentencing. The appellate court approved of the procedure. Similarly, in imposing an extended term sentence, the trial court in this case properly considered the convictions used to prove the enhanced charge. We further note that evidence of four other robbery convictions was introduced during the sentencing hearing. Thus, even if it was improper to consider the two convictions used to enhance the charge, an extended term was nonetheless justified.

Accordingly, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.