text:
    THERESE M. MIERSWA, Plaintiff-Appellant, v. STANLEY T. KUSPER, JR., et al., Defendants-Appellees.
    First District (5th Division)
    No. 84—129
    Opinion filed January 27, 1984.
    Daniel P. Madden and Joel R. Monarch, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Franklin S. Schwerin and Joseph L. Ponsetto, Assistant State’s Attorneys, of counsel), for appellee Stanley T. Kusper, Jr.
    William J. Harte, Ltd., of Chicago (William J. Harte and William T. Rodeghier, of counsel), for appellee Raymond Coyne.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Therese M. Mierswa, appeals from an order of the trial court which denied her petition for a writ of mandamus against defendant, Stanley T. Kusper, Jr., in his official capacities as Cook County clerk and chairman of the county officers electoral board of Cook County. The petition sought to require defendant to convene the electoral board to hear an objection filed by plaintiff to the nominating papers of defendant-intervenor Raymond F. Coyne, a candidate for the office of commissioner of the Cook County Board of Appeals in the Democratic primary to be held March 20, 1984. The issue presented for review is whether plaintiff filed her objection to Coyne’s nominating papers within the statutory time limit. The trial court held that she had not and, for the reasons which follow, we affirm the order of the trial court.

Plaintiff filed her petition for a writ of mandamus on December 29, 1983. On December 30, 1983, Coyne sought and was allowed leave to intervene as a party defendant in the matter. On that same date, both defendants filed answers to the petition and Kusper filed several affirmative defenses. At the hearing on the petition, all of the parties stipulated that the facts alleged in the petition and in the affirmative defenses were true. These included the following: plaintiff is a registered voter in Cook County, Kusper is county clerk of Cook County and as such is charged by statute with the duties of receiving nomination papers filed by candidates for public office, as well as objectors’ petitions thereto. The county clerk in September 1983 published a “1984 Cook County Election Calendar” and the Illinois State Board of Elections in August 1983 published a “State of Illinois Election and Campaign Finance Calendar 1984.” Each of the publications specified Saturday, December 24, 1983, as the last day for filing objections to nominating papers. The last day to file nominating papers for the office which Coyne seeks was Monday, December 19, 1983. The Election Code deems nominating papers to be “valid unless objection thereto is duly made in writing within 5 days after the last day for filing the *** nomination papers ***.” (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 8.) The fifth day following Monday, December 19, 1983, was Saturday, December 24, 1983. The clerk’s office was open until 5 p.m. on that day. The following day was a Sunday. The next day was Monday, December 26, 1983, a legal holiday. On Tuesday, December 27, 1983, plaintiff filed an objector’s petition in the office of the county clerk. On Wednesday, December 28, 1983, defendant Kusper notified plaintiff that he refused to convene the electoral board for a hearing on the petition because it was not timely filed. Plaintiff thereafter filed her petition for a writ of mandamus which, as indicated above, was denied by the trial court. We ordered the case heard on an expedited briefing schedule.

Plaintiff argues in this court, as she did in the trial court, that the time in which she could file objections to Coyne’s nominating papers was extended by the operation of section 1.11 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1981, ch. 1, par. 1012). This statute provides that:

“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.” (Ill. Rev. Stat. 1981, ch. 1, par. 1012.)

Defendants call our attention to section 1 of “An Act to revise the law in relation to the construction of the statutes,” which provides that “In the construction of statutes, Sections 1.01 through 1.32 shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute.” (Ill. Rev. Stat. 1981, ch. 1, par. 1001.) The question before us is therefore a very narrow one, viz., whether section 1.11 extends the five-day objection period provided by section 10 — 8 of the Election Code where the fifth day falls on a Saturday.

In construing a statute, the primary inquiry is to ascertain the legislature’s intention not only from the language which it has used, but also from the reason and necessity for the act, the evils sought to be remedied, and the objects and purposes sought to be obtained. Lincoln National Life Insurance Co. v. McCarthy (1957), 10 Ill. 2d 489, 494, 140 N.E.2d 687.

Both defendants argue that an examination of the Election Code reveals a legislative intent to make Saturday the last day for filing objections. We agree. Under the Election Code, the general primary election is always held on the third Tuesday in March. (Ill. Rev. Stat. 1981, ch. 46, par. 2A — 1.1(a).) The Election Code further provides that “[a]ll petitions for nomination shall be filed by mail or in person as follows: *** 2. Where the nomination is to be made for a county office *** then such petition shall be filed in the office of the county clerk not more than 99 nor less than 92 days prior to the date of the primary.” (Ill. Rev. Stat. 1981, ch. 46, par. 7 — 12(2).) Section 10 — 8 of the Election Code provides that “nomination papers *** being filed as required by this Code, and being in apparent conformity with the provisions of this Act, shall be deemed to be valid unless objection thereto is duly made in writing within 5 days after the last day for filing the *** nomination papers ***” (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 8), with specified exceptions not here relevant. The last day for filing the nomination papers, as determined by section 7— 12(2), is 92 days before the date of the primary, March 20, 1984, a Tuesday, which was December 19, 1983, a Monday. Because the primary election is always on a Tuesday under section 7 — 12(2), the last day to file nominating papers is always a Monday, and does not vary from year to year. Thus, the last day to file objections under section 10 — 8 is always a Saturday. This appears to be a conscious determination on the part of the General Assembly, and thus section 1 of “An Act to revise the law in relation to the construction of the statutes” does not apply because to do so would be inconsistent with the manifest intent of the legislature. See People ex rel. Eitel v. Lindheimer (1939), 371 Ill. 367, 376, 21 N.E.2d 318.

Plaintiff argues that the plain language of section 1.11 makes it applicable to the instant case. While the statute does state that the time to do “any act” provided by law shall not include the last day if it is a Saturday, section 1 of the same act provides that section 1.11 shall not be applied if its application would be inconsistent with the manifest intent of the General Assembly. (See also Lincoln National Life Insurance Co. v. McCarthy (1957), 10 Ill. 2d 489, 140 N.E.2d 687.) We have already determined that such is the case here.

Plaintiff next argues that section 1.11 and the Election Code should be construed as statutes in pari materia, apparently because both relate to the time in which a particular act must be done. Plaintiff cites several cases which have applied section 1.11 to various statutes. These cases are distinguishable from the instant case, however, in that in each of the cases on which plaintiff relies, the falling of the last day of the statutory time limit on Saturday was mere happenstance, and not the product of legislative design. In Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292, the electoral board was to meet to consider objections to candidates remaining on the ballot for failure to file statements of economic interest on time. The electoral board was mandated by statute to convene “ '*** not *** less than 3 nor more than 5 days after the receipt of the *** objector’s petition by the chairman of the electoral board.’ ” (102 Ill. App. 3d 558, 563, 429 N.E.2d 1292, quoting Ill. Rev. Stat. 1979, ch. 46, par. 10 — 10.) The hearing was held on September 8, 1981, although the chairman had received the objections on September 1. The court held that section 1.11 applied to extend the time from September 5, a Saturday, through Sunday, September 6, and Monday, September 7, Labor Day, a legal holiday.

It is apparent that the three- to five-day period in which the chairman could have convened the meeting did not mandate any particular day for meeting, and thus it was a mere fortuity that the chairman received the objections on a Tuesday, which would, under the court’s computation, have caused the last day to fall on a Saturday. The court accordingly and appropriately found section 1.11 applicable. In In re Application of County Treasurer (1975), 26 Ill. App. 3d 753, 326 N.E.2d 120, the court held that section 1.11 did not apply where days other than the last day of the time period fell on a Saturday, Sunday or legal holiday. In Urbaniak v. John Berg Manufacturing Co. (1972), 9 Ill. App. 3d 508, 292 N.E.2d 460 (abstract), the plaintiff had filed her complaint on April 17, 1972, for personal injuries incurred on April 15, 1970. The court held that where Saturday was the last day in which to file a suit within the limitations period, the time to file is extended by section 1.11. An injury may of course occur on any day of the week, and it is sheer chance that in any particular case it will fall on any particular day. In John Allan Co. v. Sesser Concrete Products Co. (1969), 114 Ill. App. 2d 186, 252 N.E.2d 361, the period of redemption for certain tax-delinquent real estate was extended where the last day of the period fell on a Saturday. In this case, as in all of the others cited by petitioner, the fact that the last day of a statutory period fell on a Saturday was a random event as opposed to the carefully drawn legislative scheme at issue in the instant case. Accordingly, we find these cases distinguishable.

Plaintiff next contends that “An Act to revise the law in relation to county clerks” (Ill. Rev. Stat. 1981, ch. 35, par. 4), when read in conjunction with section 1.11 and the Election Code, demonstrates that the legislature did not intend Saturday to be the final day on which to file objections. Section 4 provides that:

“The county clerk shall keep his office at the court house of his county, or at such other place as may be provided for him by the authorities of such county seat and shall keep his office open and attend to the duties thereof:
(a) In counties of 500,000 or more population from 9 a.m. to 5 p.m. of each working day except Saturday afternoons and legal holidays, but the clerk may open the office at 8 a.m. on each working day:
(b) In counties of less than 500,000 population from 8 a.m. to 5 p.m. of each working day except Saturdays and legal holidays ***.” Ill. Rev. Stat. 1981, ch. 35, par. 4.

Plaintiff initially contends that holding Saturday as the last day for filing objections would work an injustice by allowing the actual time for filing to vary at the discretion of the county clerk in keeping his office open. We note that plaintiff does not argue that she could not have filed her objections on December 24, 1983, and that she stipulated that the clerk’s office was in fact open until 5 p.m. on that day. Nothing in the record indicates that the office was not open at least during its legally mandated hours. Because the clerk’s office in Cook County was open pursuant to statute on December 24, 1983, the discretion of the county clerk does not enter into this case. Plaintiff has not shown how she has been injured by the conduct of the clerks of other counties and she lacks standing to assert this argument in her own behalf. See Polich v. Chicago School Finance Authority (1980), 79 Ill. 2d 188, 205, 402 N.E.2d 247.

Plaintiff next contends that, should we affirm the trial court, we should apply our decision prospectively. Plaintiff cites Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560. As pertinent here, that case merely held that the legislature may shorten an existing limitations period without offending due process as long as a reasonable period of time remained in which to file a complaint. This argument might have some debatable validity were the legislature to shorten the period for filing objections from five days to one, for example, but that is not the case before us.

Plaintiff also cites Madden v. Schumann (1982), 105 Ill. App. 3d 900, 435 N.E.2d 173. In that case, however, the appellate court did not apply the construction of a statute prospectively, but merely stated that if one set of statutory directions were taken to be mandatory, an obvious ambiguity would be created by another set of directions in the same statute. The court accordingly held that only substantial compliance with the first set was required. In many cases conflicting interpretations of statutes are possible, but merely because a court finds one construction to embody the legislature’s intent does not work a sudden change in the law sufficient to require prospective application of the court’s holding.

Plaintiff finally argues that our construction of the statutes in question here results in insufficient notice to the public of the last day to file. Citing John Allan Co. v. Sesser Concrete Products Co. (1969), 114 Ill. App. 2d 186, 252 N.E.2d 361, petitioner maintains that where the clerk could have, as easily as not, lawfully closed the office or even refused to open it at all, the time for filing should be extended. (But see Richter v. Chicago & Erie R.R. Co. (1916), 273 Ill. 625, 628, 113 N.E. 153 (fact that courts were closed on last day not sufficient to extend time).) That case is distinguishable from the case at bar, however, in that Jefferson County apparently had at the time of decision a population of fewer than 500,000 and therefore the office of the clerk of its circuit court was not legally required to open on Saturdays. (HI. Rev. Stat. 1969, ch. 35, par. 4(b).) The Cook County clerk’s office, being in a county of more than 500,000 people, was lawfully required to remain open at least until noon on Saturday, and in fact remained open until 5 p.m. on the day in question. We need not delve into subtle hypotheticals concerning what might have happened had plaintiff tendered her objections to an office closed on Saturday afternoon, as that is not the case before us. We have decided only, on the facts peculiar to the instant case, that Saturday, December 24, 1983, was the last day intended by the legislature for the filing of objections in Cook County for this particular election.

We note at this juncture that although both parties briefed and argued the significance of various contemporaneous administrative interpretations of the statutes here in issue, those administrative interpretations have not formed the basis for our decision.

For the reasons stated above, the order of the circuit court is affirmed.

Affirmed.

LORENZ and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN P. BECKLER, Defendant-Appellant.
    Second District
    No. 83—212
    Opinion filed February 1, 1984.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, John R Beckler, was charged by information with burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1(a)), possession of burglary tools (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 2), and theft of property with a value in excess of $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(1)). On June 8, 1981, defendant filed a petition to be treated as an addict under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 911/2, par. 120.1 et seq.). On July 24, 1981, the trial court found defendant to be an addict likely to be rehabilitated through treatment. Defendant pleaded guilty to all three, charges and the trial court deferred entering a judgment of conviction on these pleas in accordance with section 9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat., 1980 Supp., ch. 91V2, par. 120.9). The trial court then placed defendant under the supervision of Treatment Alternatives to Street Crimes, Inc. (TASC), for treatment for a period of two years.

On October 21, 1982, the State filed a petition to revoke defendant’s “probation” because defendant allegedly left the residential treatment center to which he was assigned without permission. On November 10, 1982, after a hearing, the trial court denied this petition, and ordered defendant back to the treatment center. On November 24, 1982, TASC examined defendant, determined that he was unacceptable for TASC services because he did not demonstrate the likelihood of rehabilitation, and so informed the trial court by letter. The letter was a summary report containing only the conclusion that defendant did not demonstrate the likelihood for rehabilitation. On December 20, 1982, based on the letter stating defendant’s unacceptability to TASC, the trial court terminated defendant’s supervision without a hearing and entered judgment on the prior guilty pleas. • Defendant later moved to vacate this judgment claiming he was entitled to a hearing before termination of supervision. On February 7, 1983, over defendant’s objection that he was entitled to a revocation hearing and minimal due process rights prior to the termination of his supervision, the trial court held a sentencing hearing and sentenced defendant to concurrent five-year terms of imprisonment for burglary and theft over $150.

Defendant appeals from the judgments of conviction and sentences. The only issue we address on appeal is whether the trial court erred in terminating defendant’s supervision under section 9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 9IV2, par. 120.9) without affording him even minimal due process.

Defendant contends that he was entitled to due process before the termination of his supervision because “a liberty interest within the of-the protection afforded by the due process clause” of the fourteenth amendment was at stake. He asks this court to follow the concurring opinion of Justice Craven in People v. Prather (1977), 55 Ill. App. 3d 54, 65, 370 N.E.2d 831, and hold that due process requires (1) written notice of the alleged violations; (2) an opportunity to be heard and to present witnesses; (3) disclosure to the accused of the evidence against him; and (4) the right to confront and cross-examine adverse witnesses before supervision may be terminated.

Whether an individual is entitled to procedural due process depends on whether he is being deprived of a liberty or property interest. (Board of Regents v. Roth (1972), 408 U.S. 564, 569, 33 L. Ed. 2d 548, 556, 92 S. Ct. 2701, 2705; see also Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 293-94, 395 N.E.2d 1376.) Defendant contends he has a liberty interest in remaining under supervision. Thus, we must determine whether an individual placed under supervision under section 9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.9) has a liberty interest in remaining under supervision so that he is entitled to procedural due process prior to the termination of that supervision.

A person who is an addict and is charged with a crime has no constitutional or common law right upon a finding of guilty or a plea of guilty to defer the entry of a judgment of conviction. Section 9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat., 1980 Supp., ch. 91½, par. 120.9) provided defendant with the opportunity to elect to submit to treatment and, because he was accepted by a licensed treatment program and the court determined it was appropriate, defendant was able to be placed under supervision and have the entry of the judgments of conviction deferred pending the outcome of his treatment. If defendant’s treatment period had been successfully completed, the statute would have entitled him to discharge of the criminal proceedings. (People v. Moore (1982), 108 Ill. App. 3d 260, 264-65, 439 N.E.2d 98.) Thus, defendant has an interest, created by this statute, in remaining under supervision until his treatment period was completed and the criminal proceedings were discharged.

Section 9 also provides that “[i]f, before the supervisory period expires, the licensed program *** determines that the individual cannot be further treated, it shall so advise the court. The court shall thereupon terminate the supervision, and the pending criminal proceeding maybe resumed.” Ill. Rev. Stat. 1981, ch. 9I½, par. 120.9.

Where a State statute creates a right and specifies that that right may be forfeited only upon the misconduct of an individual, then that individual has a liberty interest which requires that procedural due process be accorded the individual in the determination whether the misconduct has occurred. (Wolff v. McDonnell (1974), 418 U.S. 539, 557-58, 41 L. Ed. 2d 935, 951-52, 94 S. Ct. 2963, 2975; see also Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756; Morrissey v. Brewer (1972), 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593.) The purpose of due process is to protect the individual from the arbitrary action of government. (Meachum v. Fano (1976), 427 U.S. 215, 226, 49 L. Ed. 2d 451, 460, 96 S. Ct. 2532, 2539.) On the other hand, not every change in circumstances of a defendant is sufficient to invoke the protections of the due process clause. 427 U.S. 215, 224, 49 L. Ed. 2d 451, 459, 96 S. Ct. 2532, 2538.

While section 9 does not specify that supervision may be terminated only upon the misconduct of the person undergoing treatment, it does require a determination by the licensed program that the individual cannot be further treated. It is apparent that such a determination must be based on events occurring during the course of treatment. Because defendant may suffer the loss of his liberty by having judgment entered and by being subsequently sentenced upon termination of supervision under section 9, the placing of the absolute control of that determination in the discretion of the licensed program designated by the Commission, a discretion which may be subject to arbitrary exercise or abuse, requires certain minimal due process protection. Thus, we hold that section 9 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.9) creates a protected liberty interest in an individual placed under supervision under section 9 which requires that procedural due process be accorded that individual before the court may terminate the supervision.

Our holding that a liberty interest is created by section 9 is in accord with Justice Craven’s concurring opinion in People v. Prather (1977), 55 Ill. App. 3d 54, 63, 370 N.E.2d 831. Other jurisdictions have found a liberty interest under the Federal or State constitutions in similar statutes providing for drug treatment programs as an alternative to criminal conviction or sentence. E.g., United States v. Thornton (D. Del. 1972), 344 F. Supp. 249; People v. Ramirez (1979), 25 Cal. 3d 260, 599 P.2d 622, 158 Cal. Rptr. 316; State v. Grimme (Iowa 1979), 274 N.W.2d 331.

The State relies on the opinion of Justice Trapp in People v. Prather (1977), 55 Ill. App. 3d 54, 370 N.E.2d 831. However, that opinion does not directly address the question whether section 9 creates a liberty interest. It concludes only that a “full panoply” of constitutional rights does not apply to the termination of supervision under section 9.

Additionally, Justice Trapp’s opinion in Prather concludes that the termination of supervision issue is controlled by People v. Phillips (1977), 66 Ill. 2d 412, 362 N.E.2d 1037. However, we believe Phillips is distinguishable for two reasons. First, it dealt with a separation of powers question rather than a due process question. Second, Phillips concerned the issue of the consent of an individual’s probation officer before an individual could be eligible to be placed under supervision. Phillips did not involve termination of a placement under supervision.

Since we hold that defendant was entitled to due process prior to termination of his supervision because he had a liberty interest, we must determine what procedures are required to provide due process.

Termination of supervision under section 9, before the expiration of the period of supervision, can occur only when the licensed program determines that the individual cannot be further treated. As the court noted in People v. Ramirez (1979), 25 Cal. 3d 260, 273, 599 P.2d 622, 630, 158 Cal. Rptr. 316, 324, this determination is inherently subjective and is not as readily adapted to procedural due process safeguards as are decisions that turn on specific factual determinations. However, we agree with Justice Craven in his concurring opinion in People v. Prather (1977), 55 Ill. App. 3d 54, 65, 370 N.E.2d 831, that due process requires that a hearing must be held for one under treatment under section 9 before the court makes a determination on the licensed program’s decision that the individual cannot be further treated. We also are substantially in accord with his suggestion of the rights which must be given a defendant. Defendant’s status as a person under the supervision of a licensed program is akin to that of a probationer. Thus, we believe that the individual subject to termination should be accorded the following rights: (1) written notice of the reasons the individual cannot be further treated; (2) an opportunity to be heard and to present witnesses; (3) disclosure to him of the evidence against him; and (4) the right to confront and cross-examine adverse witnesses. (See also State v. Grimme (Iowa 1979), 274 N.W.2d 331, 336-37.) We also agree that, where appropriate, this procedure should be flexible enough to admit evidence including letters, affidavits, and other materials that might not be admissible in a trial. (See People v. Prather (1977), 55 Ill. App. 3d 54, 65, 370 N.E.2d 831, (Craven, J., concurring); see also United States v. Thornton (D. Del. 1972), 344 F. Supp. 249; State v. Grimme (Iowa 1979), 274 N.W.2d 331, 336-37.) The purpose of these procedures is to insure that the determination by the licensed program that defendant cannot be further treated is not arbitrary. See Meachum v. Fano (1976), 427 U.S. 215, 226, 49 L. Ed. 2d 451, 460, 96 S. Ct. 2532, 2539.

It is apparent from the record that defendant was not accorded the procedural safeguards set out above. While the State maintains that the prior hearing on its petition to revoke defendant’s “probation” was sufficient to satisfy due process, that hearing resulted in a finding that the State had not proved its charges. Defendant’s termination occurred later when the court received a letter from TASC stating defendant was unacceptable for further TASC services because he did not demonstrate the likelihood of rehabilitation. Defendant was not given notice of the reasons for this determination, an opportunity to be heard and present evidence, disclosure of the evidence against him, or the opportunity to confront and cross-examine adverse witness. Defendant’s termination without these safeguards denied him due process. Therefore, the judgments of conviction and sentences must be reversed, and the cause is remanded for a hearing in conformance with this opinion to determine whether defendant’s supervision under section 9 should be terminated.

For the foregoing reasons the judgments of the Du Page County circuit court are reversed and the cause is remanded for further proceedings.

Reversed and remanded.

HOPF and NASH, JJ., concur:


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT KENDRICKS, Defendant-Appellant.
    First District (2nd Division)
    No. 81—2978
    Opinion filed January 31, 1984.

      Steven Clark 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, James S. Veldman, and Thalia B. Photos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant Herbert Kendricks was charged by indictment with two counts of murder and one count of armed violence. Defendant was tried before a jury which found him guilty of murder and voluntary manslaughter. Judgment was entered on the murder verdict, a sentencing hearing was conducted, and defendant was sentenced to 35 years’ imprisonment. Defendant appeals.

Defendant emerged from a lounge at 62d and Ashland in Chicago at about 9:30 or 10:30 p.m. on July 18, 1980. He saw his friends, Tony and Raymond Givens, shooting dice on the corner with Larry Green. Green and Tony began to argue and a fight ensued. Green had Tony pinned on the ground as he beat him. Green jumped up and yelled at defendant, “I told you I was going to get your motherfucking ass.” Defendant was standing six to seven feet to the left of Green when Green began approaching him. Green reached behind his back with his right hand. Defendant thought Green was going to shoot him, so he pulled out his own gun and began shooting at Green. Defendant claims he was so frightened that he just continued firing his gun, unaware of whether he had hit Green. In all, four shots were fired. One struck Green in the side of the head, the other struck Green’s right buttock. Green was pronounced dead on arrival at the hospital.

Defendant was arrested at his mother’s home at 5:30 or 6:30 a.m. on July 19, 1980, and was read the Miranda warnings. Initially, he was questioned concerning a robbery of an Aldi’s Food Store. After signing a statement concerning the robbery, he was questioned about the shooting of Larry Green.

At noon or 1 p.m. that same day, defendant was taken to the Fourth District Station, then to the Area 3 station at 1:30 p.m. On the way to Area 3, he was given his Miranda rights, which he said he understood, and he was questioned regarding the shooting.

At the Area 3 station, defendant was again advised of his rights and gave a statement to the police. In this statement, defendant alleged that two unknown men were shooting dice with Green when one of them pulled out a gun and shot Green to death. Defendant also stated that the gun used to shoot Green was given to defendant by Raymond Givens, who had somehow come into possession of the gun.

Based on information given to them by defendant, the interrogators went to defendant’s grandmother’s house where the murder weapon was discovered.

The interrogators returned to interview defendant at 6 p.m. and again advised him of his rights. At that time, defendant told them that his earlier statement was a lie, and he offered a second version of the shooting of Green. Under this version, Tony and Raymond Givens were shooting dice with Green when Tony and Green began fighting. At this point, Raymond pulled out a gun and shot Green to death. Raymond later went to defendant’s grandmother’s house and gave defendant the murder weapon.

This interrogation of defendant ended after about an hour. The investigators who had been with defendant on and off during the day went off duty at around midnight on August 20.

At 10 a.m. on August 20, Assistant State’s Attorney (hereinafter ASA) Ruber was called in to question defendant. He did so in the presence of two new interrogators after informing defendant of his Miranda rights. Defendant took this opportunity to offer yet a third version of the killing. Under this version, defendant and Green were fighting when a man named Raymond Brooks shot Green. Brooks later gave the murder weapon to defendant for his protection.

ASA Ruber had another conversation with defendant at about 11:30 a.m. at which the original interrogators were present. The questioning stopped when defendant said something to the effect that “I think I might need a lawyer,” or “You know, I kind of think I know [sic] a lawyer, don’t I.” At this point, ASA Ruber left the room.

One of the interrogators took defendant aside, gave him his Miranda rights, and told him that he was making some incredibly contradictory statements and that ASA Ruber was taking them all down. The interrogator told defendant that they knew he was the killer and that he should confess. Defendant broke down, began to cry, and gave a confession to the interrogator.

ASA Ruber was then called back in and was told that defendant was ready to confess to shooting Green. Ruber asked defendant if he wished to talk without an attorney present and defendant stated that he did. A court reporter was called in, and defendant made a sworn statement in which he confessed to shooting Green in a dispute over a “crap” game. Defendant stated that Green was known to be violent and that he shot Green because he thought Green would kill him.

Defendant moved to suppress his confession on the ground that it was elicited despite his alleged invocation of his right to counsel. The motion was denied.

Following a jury trial, defendant was found guilty of murder and voluntary manslaughter. The trial court entered judgment on the murder conviction and, following a hearing in mitigation and aggravation, sentenced defendant to 35 years’ imprisonment. Defendant appeals from the trial court’s judgment and sentence.

Defendant first contends that the trial court erred when it entered judgment on the jury’s murder verdict rather than on the voluntary manslaughter verdict. The trial court correctly concluded that voluntary manslaughter is considered a lesser included offense of murder. (People v. Pierce (1972), 52 Ill. 2d 7, 11, 284 N.E.2d 279.) It erroneously concluded, however, that a voluntary manslaughter verdict merges into a murder verdict.

The essential difference between murder and voluntary manslaughter is the mental state of the accused at the time of the killing. (People v. Fox (1983), 114 Ill. App. 3d 593, 595, 449 N.E.2d 261.) Murder requires malice conceived before the provocation whereas voluntary manslaughter is motivated by a sudden rage of passion ¡engendered by adequate provocation or by an unreasonable belief that the killing was justified. (114 Ill. App. 3d 593, 595.) A finding that a killing was precipitated by a sudden rage or in self-defense necessarily negates the requisite level of intent for murder and thus constitutes an implied acquittal of a murder charge. 114 Ill. App. 3d 593, 595.

In the instant case, the jury found defendant guilty of both murder and voluntary manslaughter. In finding defendant guilty of the latter charge, the jury necessarily ruled that the level of intent which motivated the killing was not malice aforethought, which is the state of mind required for murder. Thus, the jury impliedly acquitted defendant of murder and the trial court should have entered judgment on only the voluntary manslaughter verdict. See People v. Fox (1983), 114 Ill. App. 3d 593, 596; see also People v. Taylor (1976), 36 Ill. App. 3d 898, 900, 344 N.E.2d 742.

Defendant next contends that the police elicited his confession after he had invoked his right to counsel and before he effectively waived that right.

While he was being interrogated and after he had been given his Miranda warnings, defendant made a statement to the police that “You know, I kind of think I know [sic] a lawyer, don’t I,” or “I think I might need a lawyer.” Defendant asserts that by this statement, he was invoking his right to counsel and any subsequent incriminating statements elicited before counsel was present should have been excluded.

Under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, where a defendant asserts “in any manner” his right to counsel, he has effectively invoked that right. (384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612.) Some Illinois courts have held that virtually any reference to an attorney by a defendant in custody should be presumed to an exercise of the right to counsel. (See, e.g., People v. Meyers (1982), 109 Ill. App. 3d 862, 869-70, 441 N.E.2d 397; People v. Starling (1978), 64 Ill. App. 3d 671, 675, 381 N.E.2d 817; People v. Rafac (1977), 51 Ill. App. 3d 1, 4, 364 N.E.2d 991; see also Maglio v. Jago (6th Cir. 1978), 580 F.2d 202, 205 (“Maybe I should have an attorney”).) Our supreme court, however, has rejected an interpretation of Miranda which would require “that every reference to an attorney no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel.” People v. Krueger (1980), 82 Ill. 2d 305, 311, 412 N.E.2d 537.

In Krueger, defendant was variously reported to have stated “Maybe I ought to have an attorney,” “Maybe I need a lawyer,” and “Maybe I ought to talk to an attorney.” The interrogators did not interpret defendant’s statement as a request for counsel and the interrogation continued and a confession was elicited. The supreme court ruled that the officers’ interpretation of defendant’s statement was reasonable because, under the circumstances, “a more positive indication or manifestation of a desire for an attorney was required than was made ***.” 82 Ill. 2d 305, 312.

Decisions which have followed Krueger have held that ambiguous references to an attorney are not an exercise of the right to counsel. See People v. Smith (1983), 113 Ill. App. 3d 305, 309-10, 447 N.E.2d 556; People v. Winston (1982), 106 Ill. App. 3d 673, 683, 435 N.E.2d 1327; People v. Harper (1981), 94 Ill. App. 3d 298, 300-01, 418 N.E.2d 894; but see People v. Meyers (1982), 109 Ill. App. 3d 862, 869-70, 441 N.E.2d 397 (“Do you think I should have an attorney” or “Who do you recommend as an attorney”).

In the instant case, the interrogation stopped when defendant made mention of an attorney. Thus it appears that the interrogators interpreted defendant’s statement as an apparent exercise of his right to counsel. While it is true that the interrogators’ subjective interpretation of defendant’s statement is a factor in determining whether the right to counsel has been invoked (see Maglio v. Jago (6th Cir. 1978), 580 F.2d 202, 205), it should not be given undue weight or emphasis. (See People v. Krueger (1980), 82 Ill. 2d 305, 311, 412 N.E.2d 537.) The emphasis should be on the import of the words used. See White v. Finkbeiner (7th Cir. 1979), 611 F.2d 186, 190.

Here, the statement made by defendant is very similar to that made by the defendant in Krueger. We find that, under Krueger, a more definite invocation of the right to counsel should have been made in the instant case to effectively invoke the right to counsel. It follows that the subsequent confessions were not elicited by interrogators in violation of defendant’s right to counsel.

Defendant’s third contention concerns the State’s use of its peremptory challenges in jury selection. Defendant, a black man, contends that the State used its peremptory challenges to exclude black jurors solely because of their race thereby denying him his sixth amendment right to have the jury drawn from a fair cross-section of the community.

In both People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, and People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353, our supreme court rejected the precise issue raised by defendant here. Defendant attempts to distinguish Davis by pointing out that in that case, the State excluded only three blacks from an unspecified number of potential black jurors whereas in the instant case, the State peremptorily excluded all five potential black jurors. But the standard of proof which a defendant must meet in establishing a discriminatory exclusion of potential black jurors is a systematic exclusion in case after case, not from any particular jury. (See People v. Williams (1983),

97 Ill. 2d 252, 274, 278; People v. Davis (1983), 95 Ill. 2d 1, 16.) It is defendant who bears the burden of producing some evidence establishing a systematic exclusion (People v. Davis (1983), 95 Ill. 2d 1, 16), and we find that he has not met that burden here.

Defendant also cites the United States Supreme Court’s recent denial of certiorari in McCray v. New York (1983), 461 U.S. 961, 77 L. Ed. 2d 1322, 103 S. Ct. 2438, as a ground for urging this court to reevaluate this State’s stance on the peremptory challenge issue raised here. The Supreme Court, after acknowledging the importance of this issue, denied certiorari to allow the States to study the issue further. In light of the court’s pronouncement, defendant urges this court to give the issue further consideration. This issue has, however, received extensive consideration in this State, and we elect not to address the issue further.

Defendant’s next contention concerns the trial court’s refusal to ask prospective jurors, during voir dire, whether they would be able ' to follow the law of self-defense. Defendant contends that the court’s failure to ask this question, tendered by defendant, served to deny him a fair and impartial jury.

The questions to be asked of prospective jurors during voir dire are largely a matter within the trial court’s discretion. (See People v. Phillips (1981), 99 Ill. App. 3d 362, 367, 425 N.E.2d 1040; People v. Witted (1979), 79 Ill. App. 3d 156, 164, 398 N.E.2d 68.) Where proposed questions touch upon “matters of law or instructions,” however, they are prohibited by rule. (87 Ill. 2d R. 234.) We have previously held that where a proposed question addresses an affirmative defense to be raised in the case, it should be excluded under Supreme Court Rule 234. (See People v. Phillips (1981), 99 Ill. App. 3d 362, 369, 425 N.E.2d 1040 (compulsion); People v. Witted (1979), 79 Ill. App. 3d 156, 164-65, 398 N.E.2d 68 (mistaken identity); see also People v. Byer (1979), 75 Ill. App. 3d 658, 670, 394 N.E.2d 632 (compulsion).)-Allowing such a question to be posited would convert voir dire into “a vehicle for pre-educating and indoctrinating prospective jurors as to a particular theory or defense or impanelling a jury with particular predispositions.” (People v. Phillips (1981), 99 Ill. App. 3d 362, 369.) Questions to prospective jurors regarding affirmative defenses are appropriate only when the defense is extremely controversial in nature. (See People v. Wilted (1979), 79 Ill. App. 3d 156, 164, 398 N.E.2d 68 (insanity defense).) Self-defense does not qualify as controversial, and we find that the trial court did not abuse its discretion by refusing to ask defendant’s proposed question.

Defendant’s final contention is that the sentence of 35 years’ imprisonment is excessive in that it fails to take into consideration the rehabilitative potential of the defendant, who was 17 years old at the time of the crime. Because of our finding that judgment should have been entered on only the voluntary manslaughter verdict, it will be necessary to remand this matter for resentencing. We need not, therefore, address the sentencing issue raised by defendant.

For the reasons expressed herein, we reverse the conviction for murder and remand to the trial court with directions to enter judgment on the voluntary manslaughter verdict. Accordingly, defendant must be re-sentenced. In all other respects, the judgment of the circuit court is affirmed.

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

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


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO HERNANDEZ, Defendant-Appellant.
    First District (3rd Division)
    Nos. 82—847, 82—1256 cons.
    Opinion filed January 18, 1984.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Edward Barron, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Following a jury trial, defendant, Antonio Hernandez, was convicted of murder and attempted murder and sentenced to concurrent terms of 30 years’ imprisonment. On appeal, defendant argues that the trial court erred in denying his motion to suppress an in-court identification by witness Leobardo Lara, and identification testimony by witnesses Victor Rivera and Jose Padilla. Defendant also contends that the State’s evidence was not sufficient to prove his guilt beyond a reasonable doubt.

The facts adduced at the hearing on the motion to suppress identification testimony follow. Witnesses for the prosecution testified that on March 15, 1980, shortly after 5:30 a.m., Leobardo Lara and Jose Rodriguez were shot in a social club located at 634 North Racine Avenue. Jose Rodriguez died as a result of the shooting. Leobardo Lara was severely wounded. Lara testified that on March 15, 1980, he went to the social club after work, arriving there at 5 a.m. Defendant was already in the bar. Lara began playing pool and while playing was shot in the stomach by defendant. This happened within an hour after Lara’s arrival.

Lara testified that after the first shot he turned away from the pool table and saw defendant with a gun in his hand. Defendant pointed the gun at Lara and fired a second shot which misfired. Lara ■ fell to the floor pretending to be dead. Lara testified that he then heard several shots and saw Jose Rodriguez fall. The club was not crowded at the time of the shooting. Defendant was standing one foot away from Lara. Defendant was wearing a long gray coat. Lara had seen defendant many times in the area of Chicago and Ashland avenues and knew defendant by the name of Sabor.

Lara talked to police officers while in the emergency room of St. Mary’s Hospital. Lara testified that he told the officers what happened in the club and defendant’s name. Lara also testified that he was shown two sets of photographs by police officers. He was shown the first set of photographs while in the intensive care unit and the second set after he was placed on the regular ward. Lara testified that on each occasion he was shown five or six photographs and he identified a picture of defendant as being that of the man who shot him in the club.

Officer Walter Siemieniak testified that he went to the hospital on March 15, 1980, and showed Lara one photograph of the defendant whom Lara identified as the shooter.

Victor Rivera testified that he was working as a bartender at 634 North Racine Avenue on March 15; 1980. He first saw defendant in the club at about 2:15 a.m. Over the course of the evening Rivera served defendant five Bacardis straight. Defendant left the club at about 4 a.m. and returned around 4:45 a.m. Defendant sat near the pool table which was approximately 40 feet from Rivera. Rivera further testified that at about 5:15 a.m. he heard shots in the club. He looked toward the pool table and saw Rodriguez fall. Defendant had a gun in his hand and was demanding that the door be opened.

Rivera described defendant as 5 feet 6 inches or 5 feet 7 inches, with a little mustache and beard and short sideburns. He testified that defendant wore a long green coat. He further testified that he had seen defendant in the area of Chicago and Noble avenues a couple of times before the shooting. Rivera had also seen defendant at Rivera’s father’s bar. Rivera worked there as a bartender for a period of five years and during that time defendant frequented the bar on most weekends.

Rivera was taken to the police station where he was shown books of photographs. Other people from the club were viewing photographs in the same room. Rivera did not identify anyone in the books. Rivera was then shown three photographs, two of which were of defendant, and he identified defendant as the shooter. Rivera testified that he did not view the three photographs with any other witnesses present. A week later Rivera identified defendant in a lineup at the police station. Rivera testified that he viewed the lineup with the witness Jose Padilla.

Jose Padilla was in the club at 634 North Racine Avenue on March 15, 1980. Padilla testified that he was standing at the bar talking to Victor Rivera when the shooting occurred. He heard the shots, looked toward the door and saw defendant with a gun in his hand. He heard defendant shout, “Open the door, goddamn it. Open the door.” The club was well lit and Padilla stood approximately 30 feet from defendant. Padilla testified that he was only able to see the side of defendant’s face when the shooting took place. He was afraid to look at defendant lest defendant shoot him. On examination by the court, Padilla testified further that he saw defendant’s face for three minutes; he kept “looking at him about two minutes, two or three minutes, till the guy went out the door.” He said defendant was wearing a raincoat from the military service which reached down to his calf.

Padilla testified that he was shown a book of photographs at the police station. He did not identify anyone in the book. He was later shown a single photograph of defendant whom he identified as the shooter. Padilla testified that he was sure of the identification even though in the photograph defendant did not have any hair. He further testified that he viewed a lineup two weeks after the, shooting and identified defendant as the shooter. Padilla stated that he viewed the lineup alone.

Defendant contends that the trial court erred in denying his motion to suppress identification testimony by witnesses Victor Rivera and Jose Padilla. Defendant argues that the identification procedures used at the police station were suggestive and that neither witness had an independent basis for his identification testimony. Defendant notes in particular that two of the three photographs shown to Victor Rivera were of defendant and that Jose Padilla was shown only one photograph. Defendant also notes Victor Rivera’s testimony that he viewed the lineup in the presence of another witness.

The standard for admitting evidence of out-of-court identification is whether there exists a very substantial likelihood of misidentification. (Neil v. Biggers (1972), 409 U.S. 188, 198, 34 L. Ed. 2d 401, 410, 93 S. Ct. 375, 381.) Suggestive confrontations are disapproved because they increase the likelihood of misidentification. (Neil v. Biggers (1972), 409 U.S. 188, 198, 34 L. Ed. 2d 401, 410, 93 S. Ct. 375, 381.) But the use of a suggestive procedure in and of itself will not support the exclusion of pretrial identification evidence. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) The reliability of the identification must be considered, and if it overcomes the suggestiveness of the procedures used, the testimony concerning the out-of-court identification may be admitted.

The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Manson v. Brathwaite (1977), 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243, 2253; Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382.) These factors test whether there is a basis independent of the suggestive procedures for the admissibility of the identification.

Applying the Manson-Biggers factors to the instant case, we agree with the trial court that the identifications by Rivera and Padilla were reliable. Both had ample opportunity to observe defendant at the time of the shooting. The club was well lighted, and was not crowded. Rivera stood 40 feet from defendant; Padilla was 30 feet away when the shots were fired. The record does not indicate whether Rivera or Padilla gave descriptions of the shooter to the police. We are thus unable to test the accuracy of prior descriptions.

Only a short time elapsed between the crime and the confrontations. The photographic identifications took place on the day of the crime. The lineup identifications took place within five weeks of the crime. Moreover, both witnesses demonstrated a high level of certainty at the confrontations. Rivera was able to identify defendant in two photographs although one photograph showed defendant without hair. Padilla identified a photograph of defendant as being that of the shooter. Both witnesses .testified that at the time of the identifications they were sure the photographs depicted the shooter. The witnesses later identified defendant in a lineup.

Our supreme court has considered an additional factor in evaluating the reliability of an identification: “ ‘any acquaintance with the suspect prior to the crime.’ ” (People v. Bryant (1983), 94 Ill. 2d 514, 521, 447 N.E.2d 301; People v. McTush (1980), 81 Ill. 2d 513, 410 N.E.2d 861.) Rivera testified that before the date of the shooting he had seen defendant a couple of times in the area of Chicago and Noble avenues and many times at Rivera’s father’s bar.

Upon application of the Manson-Biggers factors, we agree with the trial court that the out-of-court identifications by Rivera and Padilla were reliable. We moreover reject any challenges to the in-court identifications by those witnesses. Since we find the challenged identifications to be reliable, testimony as to those identifications and any identifications in their wake is admissible. (Manson v. Brathwaite (1977), 432 U.S. 98, 110 n.10, 53 L. Ed. 2d 140, 151 n.10, 97 S. Ct. 2243, 2251 n.10; People v. Bryant (1983), 94 Ill. 2d 514, 521, 447 N.E.2d 301; People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, - cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) The same considerations which indicate that the out-of-court identifications were reliable lead us, of course, to conclude that the in-court identifications rested upon independent origins sufficient to establish separate reliability and were thus properly admitted. People v. Bryant (1983), 94 Ill. 2d 514, 522.

Lastly, defendant contends that the trial court committed error by allowing Leobardo Lara’s in-court identification of defendant when it had previously excluded Lara’s out-of-court identification. Defendant argues that by excluding the out-of-court identification, the judge clearly indicated no independent basis existed by which to determine the identification was reliable. Defendant then reasons that the lack of an independent basis for the out-of-court identification renders inadmissible the in-court identification since the court could not find both the existence and non-existence of an independent basis when faced with the same evidence.

We disagree with defendant’s basic premise that the trial judge found no independent basis to support the admissibility of the out-of-court identification. The words of the trial judge are contrary to such an assumption:

“I believe that he knew who the shooter was; that he knew him from a person on the street; that he had seen him many times before, and asking the question under the totality of the circumstances, is the identification reliable. Reliability is the linchpin. Does there exist a substantial, even a substantial likelihood of irreparable identification [sic]? I don’t think so.”

The trial judge moreover provided an explanation for the exclusion of the identification:

“It would have been so much easier for this police officer, who goes to 11th and State to gets a picture of Sabor, and get a picture of the defendant, to have told the person, whomever, the clerk of photo section up there, and just say--and throw in about another 20 pictures or 10 pictures of a person of Spanish ancestry or Puerto Rican, Mexican, no matter what words he uses, and just went over there with about 10 photos and then walked into the hospital room and said, do you see Sabor here. Can you pick him out. *** I’m doing this because of the facts, and I think you ought to tell Officer Siemienak why I did it and the reasons why. It just would have taken no more time at all, or 10 or 15 seconds, and it would alleviate so much of the problem in this case.”

The trial court excluded the identification not for lack of an independent basis, but because of the police officer’s behavior.

Moreover, application of the Manson-Biggers factors shows that Lara’s out-of-court identification was reliable — that there existed an independent basis for the identification. Lara had an opportunity to view defendant at the time of the crime. Lara testified that after the first shot he turned around and saw defendant with a gun in his hand. He stared at defendant for what was estimated to be two seconds. Defendant was standing approximately one foot from him. Between the time of the first shot and the time of the second shot, all of Lara’s attention was focused on defendant. The record indicates that Lara was not asked to give a description of defendant after the crime. We thus cannot test for accuracy of prior descriptions.

The confrontation took place within days of the crime. Lara testified that he was in intensive care when he was shown the photographs of defendant. Lara identified defendant as the shooter without hesitation.

The record reveals that Lara was acquainted with defendant and had seen him in the neighborhood before the date of the shooting. He knew defendant by the name of Sabor. The trial judge said he believed that Lara “knew who the shooter was; he knew him from a person on the street, that he had seen him many times before.” We conclude that Lara’s in-court identification rested upon an independent origin sufficient to establish separate reliability and was thus properly admitted. People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.

Defendant has asked us to either reverse his convictions or reverse the convictions and order a new trial as a remedy for the admission of erroneously received identification testimony. A conviction based on an eyewitness identification at trial following pretrial identifications will be set aside only if the identification procedures were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967.) Since we conclude that the out-of-court identifications by witnesses Lara, Rivera and Padilla were reliable and therefore did not give rise to a substantial likelihood of irreparable misidentification, we refuse to set aside defendant’s convictions.

We turn now to defendant’s contention that since the identification witnesses were impeached and lacked credibility, he was not proved guilty beyond a reasonable doubt.

The testimony given at trial by witnesses Lara, Rivera and Padilla were substantially the same as that given at the pretrial hearing on the motion to suppress. Indeed, the testimony at trial was stronger in that the three witnesses identified the State’s exhibit No. 5, a green coat recovered by the police outside the door of defendant’s apartment, as a coat similar to the one the shooter was wearing.

“[I]t is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence.” (People v. Akis (1976), 63 Ill. 2d 296, 298, 347 N.E.2d 733.) Moreover, “ “*** the testimony of one witness is sufficient to convict *** provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made.’ ” (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) A reviewing court will therefore not “reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of defendant’s guilt.” (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671, cert. denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296)99 S. ct. 2858.) The evidence in this case does not raise a reasonable doubt of defendant’s guilt. Positive identifications were made by three witnesses. The jury could well have found one or more of the witnesses to be credible. We find ample support in the record for the jury’s verdict, and we will not reverse defendant’s convictions.

For the aforementioned reasons we affirm the judgment of the circuit court of Cook County.

Affirmed.

RIZZI, P.J., and McNAMARA, J., concur.

      In the discussion which follows, we accept the version of the facts most favorable to defendant, i.e., that Lara was shown only one photograph of defendant.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. POE, Defendant-Appellant.
    Second District
    No. 82—403
    Opinion filed February 1, 1984.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, James R. Poe, was found guilty after a jury trial of attempt murder, rape, aggravated kidnaping and armed robbery (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4, 11 — 1, 10 — 2, 18 — 2). He was sentenced to 50 years’ imprisonment for attempt murder, 30 years for rape, 15 years for aggravated kidnaping and 30 years for armed robbery; said sentences to run concurrently. The defendant appeals, contending that the trial court erroneously excluded as hearsay critical alibi testimony, that withdrawal of previously entered directed verdicts on the charges of aggravated kidnaping and armed robbery impermissibly placed him in double jeopardy for those offenses and that his conviction for armed robbery was improper as a matter of law.

S.W., the victim, testified that on the evening of August 1, 1981, she went with the defendant and a group of others to a series of parties in Winnebago County, Illinois. At that time she had known the defendant for four years. S.W. departed the last "of the three parties at approximately 1:45 a.m. and began walking toward her boyfriend’s house. As she walked down an alley, she was accosted by the defendant, who forced her into a nearby yard and raped her. The defendant ultimately took her to a wooded area and strangled her unconscious. When she regained consciousness, she found that her throat had been cut. A doctor testified that a four- to five-inch cut had been made in her throat and that she had lost a third of her blood volume. A vaginal swab and smear were taken, which tested positive for the presence of seminal material.

Pamela Thulander testified that the defendant left the last of the parties not more than five minutes after S.W.’s departure. The defendant did not appear intoxicated at the time.

The defendant was arrested at approximately 6 a.m. on August 2. He was wearing wet, blood-stained blue jeans. S.W.’s gold watch and pocket calculator were recovered from his person, along with two knives. One of the knives contained traces of human blood. Seminal material was found on the defendant’s undershorts, but none was found upon laboratory analysis of S.W.’s clothing. Both the defendant and S.W. had the same blood type.

The defendant denied his guilt of these offenses. He testified that he left the last of the parties about five or 10 minutes after S.W. He had been drinking heavily and, as he walked toward his home, he knelt and was sick near a drainage ditch. He did not see S.W. leave the party, nor did he encounter her during his walk. He arrived home and was met by his mother. He placed a telephone call to Lauri Frier, his girl friend. He spoke to her for approximately 30 to 45 minutes, ending the call at about 3:15. The defendant testified that his jeans had been clean at the time he went to the first of the parties, and he denied that at the time of the arrest they were soaked through or wet as far up the legs as the arresting officer had described. The defendant carried a sheath knife virtually everywhere he went, but did not use it for cutting. The blood found on the knife might have resulted from the defendant’s cutting himself the last time he had cleaned it. The blood on his pants might have gotten there during one of the parties, when a small scrape on his elbow from a fight two weeks previously began to bleed. Further, he had had sexual intercourse “maybe a day or two” before August 1 and had worn his undershorts “probably one or two” times before that date.

Clifford Keen, a friend of the defendant’s, testified that the defendant left the third party 15 or 20 minutes after S.W. The defendant’s mother, Bessie Phillips, testified that the defendant returned home about 2:35 on the morning of August 2. He made a phone call, made himself a pizza and went to sleep.

The first issue is whether the trial court committed reversible error by excluding as hearsay testimony of an alibi witness that the defendant was speaking to her on the telephone shortly after the crime.

Among the witnesses called by the defense was Lauri Frier, the defendant’s girl friend. When the defense counsel sought to question her concerning a telephone conversation she had during the early hours of August 2, the State objected, challenging testimony about the details of the conversation as hearsay. The court sustained those objections, and defendant attacks the correctness of those rulings on appeal.

Miss Frier testified that she arrived home at 2 a.m. on August 2. At 2:30, shortly after she went to bed, the telephone rang in her bedroom. Her sister answered the phone, but Miss Frier then spoke to the caller. Defense counsel then asked the question, “Who was on the phone, if you know?” but the court sustained the State’s objection before an answer could be given. Miss Frier was then permitted, over the State’s objection, to testify that she talked to the other person on the line. Defense counsel then asked whether the person on the line identified himself or herself, and the State interposed another objection. Defense counsel made an offer of proof that the witness would testify that she talked to the defendant, and the court sustained the objection. Continuing with her testimony, Miss Frier testified that the conversation lasted 45 minutes, after which she went to sleep.

Leading commentators have summarized the evidentiary rules relating to telephone conversations as follows:

“Communications by telephone do not authenticate themselves. A mere assertion by the speaker as to his identity, being hearsay, cannot be taken as a sufficient showing of his identity. Testimony that the witness was familiar with and recognized the speaker’s voice is obviously sufficient ***. The familiarity may be acquired prior to the conversation *** or afterward ***. Authenticating evidence may also be circumstantial, such as contents of the statement or the reply technique.” (E. Cleary & M. Graham, Handbook of Elinois Evidence sec. 901.7, at 489 (3d ed. 1979).)

Thus, a telephone conversation may be authenticated either by direct or circumstantial evidence. (People v. Patten (1982), 105 Ill. App. 3d 892; see Annot., 79 A.L.R.3d 79 (1977).) However, testimony as to a telephone conversation between a witness and the accused is inadmissible in the absence of a claim by the witness that he knows the accused or could identify his voice, or in the absence of other evidence or corroborative circumstances from which he might be identified as the person to whom the witness talked. People v. Metcoff (1946), 392 Ill. 418.

The instant case involves rulings by the trial court which sustained prosecution objections to two questions posed by defense counsel to an alibi witness. It is clear that Frier’s testimony was not hearsay. Hearsay has been defined as follows:

“ 'Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ ” People v. Carpenter (1963), 28 Ill. 2d 116, 121.

Frier’s testimony was not to be an assertion of the truth asserted therein, but mere evidence that she spoke to the defendant at a certain time. It was error for the trial court to sustain the objections to this testimony.

Even though we conclude that the trial court committed error in excluding Miss Frier’s testimony concerning the telephone call, such error is harmless beyond a reasonable doubt. Both the defendant and his mother testified that the call was made, and the defendant specifically stated that he made a call to Lauri Frier of about 45 minutes’ duration. Miss Frier’s testimony, even absent her identification of the caller, that she engaged in such a conversation at approximately the time indicated provided substantial corroboration of the defendant’s alibi testimony. In view of the strength of the prosecution’s case, which included the virtually unimpeached eyewitness identification of the defendant, forensic evidence and the recovery from the defendant’s person of property stolen from the victim, we conclude that the erroneous exclusion of testimony by Miss Frier as to the identity of her caller would have been unlikely to alter the jury’s verdict. We do not regard the probative value of the physical evidence recovered from the defendant to have been markedly diminished by the fact that both S.W. and the detective principally in charge of the case testified that S.W. identified her watch and calculator while in the emergency room, a point prior to the defendant’s arrest. The chronology of events (the first police officer to encounter S.W. arrived at the home where she had gone after the attack at 3:30 a.m.; the detective arrived at the hospital at 4:10 a.m.) effectively dispels the defendant’s contention that the detective had an opportunity to obtain the items before interviewing S.W., and then “plant” them on the defendant.

The defendant next contends that the trial court erred in withdrawing directed verdicts previously entered on the charges of aggravated kidnaping and armed robbery.

At the conclusion of the case for the prosecution, the trial court granted defendant’s motion for directed verdict as to the charges of aggravated kidnaping and armed robbery. The following day, the State moved for reconsideration of this ruling, and the court vacated the directed verdicts and reinstated the charges. Defendant contends on appeal that reinstatement of the charges placed him in double jeopardy for the offenses of which he had previously been acquitted. The State counters that the defendant’s motion was premised upon legal theories rather than upon the sufficiency of the evidence and that, despite the terminology employed by the trial court, no directed verdicts were in fact entered in this case.

The granting of a motion to direct a verdict is an acquittal and may not be withdrawn by the trial court even if erroneous. It is, moreover, immaterial whether the directed verdict has been announced to the jury or reduced to writing. (People v. Stout (1982), 108 Ill. App. 3d 96.) This is true regardless of whether the court’s ruling is based upon a mistake of fact or a mistake of law. (In re L.R. (1982), 106 Ill. App. 3d 244.) Although the State suggests that the court may look behind a directed verdict to analyze the basis upon which it is rendered and construe the order as something other than a directed verdict where it was not based upon the insufficiency of the evidence, this view involves an overly narrow reading of what constitutes a directed verdict.

The law (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(k)) provides for entry of a directed verdict when “the evidence is insufficient to support a finding or verdict of guilty ***.” Upon entry of a directed verdict, the court is to enter a judgment of acquittal and discharge the defendant. The view of the statute taken by the State would preclude entry of a directed verdict unless the insufficiency of the evidence related to one of the elements of the offense charged. The statutory language, however, is not limited to those situations. Entry of a directed verdict seems an appropriate remedy whenever, following the State’s case or at the conclusion of all the evidence, it appears from the record that a judgment of conviction of a charge cannot stand. As long as the directed verdict is not the result of a sham trial (cf. People v. Deems (1980), 81 Ill. 2d 384), there seems no point in requiring that proceedings involving an insupportable charge continue to verdict. Entry of a directed verdict in such circumstances reflects a determination by the trial court based upon its evaluation of the evidence that a judgment of conviction may not validly be entered on a charge. Such a determination is tantamount to an acquittal, and we therefore conclude that the court erred in vacating its directed verdicts as to the charges of armed robbery and aggravated kidnaping.

The defendant asserts that the trial court’s error requires a new sentencing hearing on the remaining counts. He relies upon cases which, where convictions on certain counts have been vacated and others permitted to stand, have remanded for resentencing because it could not be ascertained whether or to what extent the trial court considered the vacated convictions in sentencing for the remaining counts. (People v. Alejos (1982), 104 Ill. App. 3d 414; People v. Davis (1981) , 95 Ill. App. 3d 161. See also People v. Filker (1981), 101 Ill. App. 3d 228; People v. Hert (1981), 95 Ill. App. 3d 871; People v. Walton (1981), 94 Ill. App. 3d 903; People v. Smith (1980), 86 Ill. App. 3d 302.) It has elsewhere been held that a remand for resentencing is not required on the conviction which is affirmed where a separate sentence has been imposed for each offense. People v. Donaldson (1982) , 91 Ill. 2d 164, 170-71; People v. Buford (1982), 110 Ill. App. 3d 46.

A reviewing tribunal cannot conclude, solely from a trial court’s simultaneous imposition of separate sentences for multiple convictions, that the sentence imposed for one offense has been influenced by the conviction or sentence for another offense. Sentencing is a trial court function, and unless the record demonstrates an abuse of discretion, we will conclude that the court considered only the appropriate factors in making its sentencing determinations (People v. Cox (1980), 82 Ill. 2d 268, 280; People v. La Pointe (1981), 88 Ill. 2d 482, 492-93). Since there is no evidence in the record suggesting that the defendant’s remaining sentences were improperly affected by his separate additional convictions and sentences, we will not remand his remaining convictions for sentencing. People v. Martin (1984), 121 Ill. App. 3d 196; People v. Einstein (1982), 106 Ill. App. 3d 526, 535.

The defendant did not establish on the basis of the record that the trial court was influenced in passing sentence by the existence of a conviction for another offense which has been set aside upon review. (People v. Miles (1981), 96 Ill. App. 3d 721; People v. Myers (1980), 83 Ill. App. 3d 1073.) Since in the instant case separate sentences were imposed for each offense and since the record fails to disclose that the sentences for attempt murder and rape were influenced by the findings of guilty of the other offenses, we conclude that remand for re-sentencing is unnecessary.

Lastly, the defendant contends his conviction for armed robbery must be reversed because the prosecution failed to prove that the use of force was contemporaneous with the taking of the property.

In light of our disposition of the second issue, we need not address this issue.

For the reasons stated, the judgment of the circuit court of Winnebago County which found the defendant guilty of the offenses of attempt murder and rape and imposed sentences for those offenses is affirmed; the convictions and sentences for the offenses of aggravated kidnaping and armed robbery are reversed.

Affirmed in part; reversed in part.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL E. GARDNER, Defendant-Appellee.
    Second District
    No. 83—246
    Opinion filed February 1, 1984.

      Robert J. Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Peter M. Donat, of Donat & Donat, of Batavia, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

The State appeals (87 Ill. 2d R. 604(a)(1)) from an order of the circuit court of Kane County which granted the pretrial motion of the defendant, Michael Gardner, to quash search warrants and to suppress the evidence which was seized pursuant to the warrants. The State’s sole contention on review is that the court below incorrectly granted the motion to quash and suppress, because a police officer who is engaged in a routine, nighttime check of a business establishment and finds an unlocked door may make a warrantless entry of the building without violating the fourth amendment to the United States Constitution (U.S. Const., amend. IV).

In a six-count indictment entered on December 14, 1982, the grand jury charged the defendant with three counts of felony theft (Ill. Rev. Stat. 1981, ch. 38, pars. 16 — 1(a)(1) and 16 — 1(d)(1)), two counts of possessing a stolen motor vehicle (Ill. Rev. Stat. 1981, ch. 951/2, par. 4 — 103(a)(1)), and possession of a vehicle component part whose vehicle identification number had been removed (Ill. Rev. Stat. 1981, ch. 95V2, par. 4-103(a)(4)).

Shortly after he was arraigned, defendant filed a motion which requested that the trial court quash certain search warrants the police obtained and suppress the evidence law enforcement officers seized that day. Among other things, the motion stated that police officers did not have probable cause to enter the premises in question and that the initial search of the building was unreasonable. The court held a hearing to adjudicate the pretrial motion to quash and suppress. The crucial inquiry which the parties addressed at the suppression hearing was whether the initial entry of the building was constitutionally permissible under the fourth amendment. The court below granted the defendant’s motion. In its supplemental order the court determined that the warrantless entry of the building was without probable cause, that no exigent circumstances existed to support the warrantless entry, and, therefore, that the unlawful entry could not justify either the issuance of the search warrants or the admission into evidence of the items discovered on the premises.

After the court granted the motion to suppress, the State filed the requisite certificate of substantial impairment as well as a timely notice of appeal.

Officer Frederick Behner of the Batavia police department testified that he was the affiant in a November 23, 1982, complaint which sought to obtain a warrant to search the premises of American Automobile Repair, which was located at 590 South River Street in Batavia, Illinois. The officer identified a copy of his affidavit. Defense counsel stated that he would not challenge the truthfulness of the statements in the affidavit; consequently, the court ruled that the affidavit spoke for itself and, thus, that defense counsel could not question Officer Behner regarding the matters contained in the affidavit.

Officer Behner’s affidavit stated that on November 23, 1982, he was conducting, as part of his patrol duties, routine checks of businesses in Batavia to determine whether they were secure. During this patrol the officer checked the rear door on the east side of the building housing American Automotive Repair and determined that the door in question was unlocked. The testimony presented at the suppression hearing reflects that at approximately 4 a.m. Officer Behner discovered that the door was closed but unlocked. The affidavit recites further that the officer followed official police department policy and entered the building to determine whether any unauthorized person had entered the premises and to ascertain who the owner of the business was in order to notify the owner that the building was not secure. Upon entering the building, Officer Behner observed a blue AMC Jeep CJ-5 inside the structure and noticed that the vehicle had no Illinois license plates affixed to it but contained an Addison, Illinois, city sticker on the front windshield. Behner also saw on the interior walls of the building pictures of Michael Gardner in the presence of a stock car and numerous trophies.

According to the affidavit, Officer Behner completed the security check of the building and returned to the Batavia police department where he contacted an officer of the Addison police department; the Addison police officer informed Behner that the Addison city sticker in question was assigned to a blue 1974 AMC Jeep CJ-5 which Leslie Kopecky owned and that the jeep had been stolen a day earlier. In addition, the affiant stated that he had personal knowledge that Michael Gardner had been convicted of theft and was known in the community as an automobile thief.

At the suppression hearing, Officer Behner related that he returned to American Automotive Repair with a search warrant seven hours after he originally noticed that the door was unlocked. His testimony revealed that the items recovered from the premises pursuant to the first search warrant and a later search warrant related to two stolen jeeps, including the one which Mr. Kopecky owned. At the conclusion of the hearing the court granted defendant’s motion to suppress on the grounds that the officer’s original entry was illegal.

The present case presents a single, narrow legal question: whether a police officer violates the fourth amendment to the United States Constitution (U.S. Const., amend. IV) when, as part of a routine, nighttime security check of commercial establishments, he finds that the door to such a building is unlocked and enters the premises to ensure that criminal conduct has not occurred or is not afoot. Relying on cases from sister jurisdictions (e.g., State v. Myers (Alaska 1979), 601 P.2d 239; People v. Parra (1973), 30 Cal. App. 3d 729, 106 Cal. Rptr. 531, cert. denied (1973), 414 U.S. 1116, 38 L. Ed. 2d 743, 94 S. Ct. 849), the State argues that the entry in the present case was reasonable under the fourth amendment. The defendant, who attempts to distinguish the cases upon which the State relies, concludes that the trial court’s order quashing the search warrants and suppressing the evidence was proper, because Officer Behner’s warrant-less entry did not fall within the ambit of any of the few, well-delineated exceptions to the fourth amendment’s warrant requirement.

Initially, we note that the parties have not cited any Illinois case which has addressed the present issue, and our independent research has not revealed any. Further, the record discloses that defendant had the opportunity to challenge the truthfulness of the factual statements contained in the affidavit which Officer Behner offered in support of the complaint for a search warrant. (See, e.g., Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674; People v. Kelly (1983), 118 Ill. App. 3d 794, 455 N.E.2d 826; People v. Redmond (1983), 114 Ill. App. 3d 407, 449 N.E.2d 533; People v. Born (1983), 113 Ill. App. 3d 449, 447 N.E.2d 426.) However, he chose not to do so at the suppression hearing, as is reflected in defense counsel’s remark that counsel was not alleging that the affiant deliberately lied. Thus, because an affidavit in support of a search warrant is presumed valid (People v. Born (1983), 113 Ill. App. 3d 449, 455, 447 N.E.2d 426, 430, citing Franks v. Delaware (1978), 438 U.S. 154, 171, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684), and since the defendant has not challenged the veracity of the statements in the affidavit, those statements are viewed as true for purposes of this appeal.

The defendant correctly observes that warrantless searches and seizures are per se unreasonable under the fourth amendment unless they fall within a few specifically established and well-delineated exceptions. (Katz v. United States (1967), 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585, 88 S. Ct. 507, 514; People v. Pakula (1980), 89 Ill. App. 3d 789, 793, 411 N.E.2d 1385; People v. Sanders (1976), 44 Ill. App. 3d 510, 514, 358 N.E.2d 375, 378; People v. Creed (1975), 34 Ill. App. 3d 282, 284, 339 N.E.2d 305, 307-08.) In this State those few exceptions are search by consent, search incident to arrest, and search predicated upon probable cause where there are exigent circumstances which make it impractical to obtain a warrant. (People v. Pakula (1980), 89 Ill. App. 3d 789, 793, 411 N.E.2d 1385, 1389; People v. Creed (1975), 34 Ill. App. 3d 282, 284, 339 N.E.2d 305, 308.) It is also well settled in Illinois that the protection of the fourth amendment extends to commercial premises in which there is a reasonable expectation of privacy against governmental intrusion. People v. Stamps (1982), 108 Ill. App. 3d 280, 285, 438 N.E.2d 1282, 1289; People v. Davis (1980), 86 Ill. App. 3d 557, 559-60, 407 N.E.2d 1109, 1112; accord, State v. Myers (Alaska 1979), 601 P.2d 239, 242; People v. Parra (1973), 30 Cal. App. 3d 729, 735, 106 Cal. Rptr. 531, 535, cert. denie(1973), 414 U.S. 1116, 38 L. Ed. 2d 743, 94 S. Ct. 849.

In his highly respected treatise dealing with the fourth amendment, Professor LaFave recognizes that a warrantless entry of a commercial establishment is permissible under the fourth amendment when a law enforcement officer discovers that commercial premises are unlocked and unattended in the evening hours. (2 W. LaFave, Search & Seizure sec. 6.6(b), at 474 (1978).) This statement of the law is predicated upon and finds support in the two cases upon which the State places primary emphasis in this appeal (State v. Myers (Alaska 1979), 601 P.2d 239; People v. Parra (1973), 30 Cal. App. 3d 729, 106 Cal. Rptr. 531, cert. denied (1973), 414 U.S. 1116, 38 L. Ed. 2d 743, 94 S. Ct. 849).

In State v. Myers (Alaska 1979), 601 P.2d 239, police officers who were conducting a routine, nighttime security check of commercial premises discovered a light emanating from an open door of a theater. They entered the building, walked a few steps down a hallway to a door leading to the backstage area, heard voices coming from that area, and then looked in. They observed the defendants, one of whom was the manager of the theater, sitting on the floor with cocaine paraphernalia nearby. In upholding the subsequent arrest and seizure of the contraband, the Alaska Supreme Court concluded that the entry and subsequent limited search were police actions that did not require a warrant and found them reasonable within the meaning of the fourth amendment. In recognizing the propriety of a narrowly drawn exception to the warrant requirement in those circumstances, the court stated its holding in the following words:

“[W]e hold that law enforcement personnel may enter commercial premises without a warrant only when, pursuant to a routine after-hours security check undertaken to protect the interests of the property owner, it is discovered that the security of the premises is in jeopardy, and only when there is no reason to believe that the owner would not consent to such an entry. In the context with which we are immediately concerned, locked premises must be taken as indicating that no warrantless entry is authorized. Any search conducted incident to a legitimate entry must be brief and must be limited and necessary to the purpose of ensuring that no intruders are present on the premises. In addition, someone responsible for the premises must be informed, as soon as is practicable, of the protective measures taken.” 601 P.2d 239, 244.

While the majority in State v. Myers refused to apply the “emergency aid” exception to the fourth amendment to uphold the warrant-less entry in that case (601 P.2d 239, 241), the court apparently carved out a new, narrowly defined exception to the warrant requirement of the fourth amendment for nighttime security checks of commercial premises. We note that there was a forceful dissent in State v. Myers (Alaska 1979), 601 P.2d 239, 245-52 (Boochever, C.J., dissenting).

The second case which is instructive in the present context is People v. Parra (1973), 30 Cal. App. 3d 729, 106 Cal. Rptr. 531, cert. denied (1973), 414 U.S. 1116, 38 L. Ed. 2d 743, 94 S. Ct. 849. In Parra, a police officer responded to a citizen’s call that a door of a florist shop was ajar. Upon arriving at the shop at nightfall, the officer observed that the door was slightly open. After searching the door and front window of the establishment for the name of the proprietor without success, the officer stepped inside and with the aid of a flashlight tried to find the same information, again unsuccessfully. A radio check with the police dispatcher failed to uncover the owner’s name. After a second officer arrived at the scene, both men entered the shop to secure it for the owner and to contact him to find out whether anything had been taken. In attempting to ascertain the owner’s identity, the officers discovered heroin in a desk drawer.

In sustaining the trial court’s denial of the defendant’s motion to suppress, the Parra court stressed that the case involved an emergency presented by the discovery of an unlocked business establishment, a situation which constituted an invitation to criminality. (30 Cal. App. 3d 729, 735, 106 Cal. Rptr. 531, 535.) The court stated further that there was nothing in the record to suggest that the officers entered the retail business establishment for any purpose other than to protect the shop and its contents. In short, the officers were not tracking down criminals or ferretting out crime. In addition, the officers’ decision to enter the shop was not predicated upon abstractions or speculation but was prompted by the observed fact of an unlocked door of a retail establishment after business hours. Thus, the entry of and presence on the premises without a search warrant was privileged and did not offend the fourth amendment. (30 Cal. App. 3d 729, 733, 106 Cal. Rptr. 531, 533-34.) As in Myers there was a strong dissent in People v. Parra (1973), 30 Cal. App. 3d 729, 736, 106 Cal. Rptr. 531, 536 (Tamura, P.J., dissenting), cert. denied (1973), 414 U.S. 1116, 38 L. Ed. 2d 743, 94 S. Ct. 849.

A distillation of the above cases reflects that in certain limited circumstances law enforcement officials may enter an unsecured or unlocked commercial establishment during a nighttime security check to secure the premises and may take necessary measures to ascertain ■ the identity of the proprietor. However, the courts will be vigilant to ensure that the rationale of protecting private property is not employed as a subterfuge to seek out evidence of criminal conduct. See 2 W. LaFave, Search & Seizure sec. 6.6(b), at 474-75 (1978).

Defendant relies heavily on this court’s decision in People v. Davis (1980), 86 Ill. App. 3d 557, 407 N.E.2d 1109. However, we find that case distinguishable on the basis that the officers were not legally on the premises of the commercial establishment in Davis. There the police had received a second anonymous tip that Davis, who was employed part-time at the company which was in the metal grinding business, was in the facility making gun silencers. The police entry, as in the case at bar, was through a closed but unlocked door. We applied the Aguilar-Spinelli tests (Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584) to the information supplied the police by the anonymous telephone informant and found that the police lacked probable cause and exigent circumstances for the entry. We affirmed the suppression of the evidence. People v. Davis (1980), 86 Ill. App. 3d 557, 561-62, 407 N.E.2d 1109, 1113-14.

In many respects, the case at bar bears marked resemblance to Myers and Parra. Here, the unchallenged and uncontroverted statements in Officer Behner’s affidavit reflect that he was following official departmental policy when, upon discovering the unlocked door at American Automotive Repair, he entered the building to ascertain whether any unauthorized person had gained entry and to determine who the owner of the premises was in order to notify that person that the building was not secure. Of particular significance is the lack of any evidence or suggestion in this case that the officer entered the building as part of a preconceived plan to search for criminal activity or the proceeds of a crime. As was the situation in both Parra and Myers, the police officer was reacting solely to the established fact of an unlocked door at a commercial establishment during the night. In addition, similar to what occurred in Myers, here there is no evidence in the record that the police officer had any reason to believe that the owner of the premises would not consent to an entry designed to secure the building.

The fact that the door in the present case was closed (but unlocked), whereas the doors in Parra and Myers were ajar, is a difference without significance for purposes of fourth amendment analysis. Also, we are not persuaded that the warrantless entry was improper under Myers merely because there is no evidence in the current record that the police contacted the owner of American Automotive Repair after discovering the unlocked door. In this regard, once the Addison police informed Officer Behner that the blue jeep in question was a stolen vehicle, the urgency of contacting the owner of the building understandably may have taken second place to or been eclipsed by the subsequent attempt to secure a search warrant for the premises. It may well be that after entering and observing the vehicle without a licence plate and the photographic evidence that the business may be operated by a known car thief, the officer chose not to contact the individual. Upon learning shortly after returning to the police station that the vehicle had been stolen, the police officer had probable cause to believe the operator of the business had committed a crime. These circumstances obviated the need to contact the owner as soon as practicable. See 2 W. LaFave, Search & Seizure sec. 6.6(b), at 474 (1978).

Based on the result reached in both Myers and Parra, we conclude that the warrantless entry of the police officer in this case did not run afoul of the fourth amendment. Given the very limited nature of the warrantless intrusion in the present case, the officer’s actions were reasonable under the fourth amendment. Further we conclude that since the officer was properly on the premises, Behner’s observation of the blue AMC jeep, which was in plain view, was also proper. (See Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022.) In addition, as the trial court recognized at the conclusion of the suppression hearing, if the initial entry was proper, then probable cause existed for the issuance of the search warrants once Officer Behner learned from the Addison police department that the blue jeep was a stolen vehicle.

With respect to a motion to suppress evidence which the accused alleged was unlawfully seized, the defendant shoulders the burden of establishing that the search and seizure were unlawful. (People v. McNair (1983), 113 Ill. App. 3d 8, 16, 446 N.E.2d 577, 582; People v. Grice (1980), 87 Ill. App. 3d 718, 722, 410 N.E.2d 209, 213, cert. denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) It is equally well settled that the trial court’s finding relative to a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 165; People v. Steckhan (1983), 116 Ill. App. 3d 173, 175, 452 N.E.2d 122, 124; People v. Stamps (1982), 108 Ill. App. 3d 280, 291, 438 N.E.2d 1282, 1292; People v. Grice (1980), 87 Ill. App. 3d 718, 722, 410 N.E.2d 209, 214.) In light of the jurisprudence emanating from State v. Myers (Alaska 1979), 601 P.2d 239, and People v. Parra (1973), 30 Cal. App. 3d 729, 106 Cal. Rptr. 531, cert. denied (1973), 414 U.S. 1116, 38 L. Ed. 2d 743, 94 S. Ct. 849, we conclude that the defendant did not meet his burden and that the trial court’s order granting the motion to quash and suppress was manifestly erroneous.

The judgment of the circuit court of Kane County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.